UK, HC, “Canada Bill”, vol 18 (1982), cols 292-373
By: UK (House of Commons)
Citation: UK, HC, “Canada Bill“, vol 18 (1982), cols 292-373.
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Order for Second Reading read.
Mr. Clinton Daves (Hackney, Central) rose—
Mr. Speaker Order. This is another point of order., but I hope the hon. Gentleman realises we have had Orders of the Day.
Mr. Davis On a point of order, Mr. Speaker. You inadvertently referred to me as the hon. Member for. Hackney, South. I hope that that confusion will not be perpetuated.
Mr. Speaker I apologise and I presume that there is another hon. Member to whom I should also apologise.
[Relevant documents: The First and Second Reports, Session 1980–81, and the First Report, Session 1981–82, from the Foreign Affairs Committee, on the British North America Acts: The Role of Parliament (House of Commons Papers Nos. 42, 295 and 128) and the Observations by the Secretary of State for Foreign and Commonwealth Affairs on the First Report, Session 1980–881, Cmnd. 8450, are relevant.]
3. 53 pm
The Lord Privy Seal (Mr. Humphrey Atkins) I beg to move, That the Bill be now read a Second time.
This is an occasion of unique importance, not just to us here, but to all the people of the United Kingdom and, in particular, to all the people of Canada. All our lives we have admired Canada for what she is—a great, modern, independent country which has rightly taken her place among the leaders of the Western world. She is a shining example of freedom and of democracy and she has defended that freedom against every onslaught, both during two world wars, when we fought side by side, and ever since, when she has willingly shared the burden of preserving the peace of the world.
Mr. Speaker I am sorry to interrupt the right hon. Gentleman, but I omitted to tell the House that I had not selected either of the reasoned amendments on the Order Paper.
Mr. Atkins Canadians are also fierce defenders of the Commonwealth ideal. In 1973 the present Prime Minister of Canada said: To future historians, the Commonwealth shall be irrevocably associated with the desire of free men and women representing more than a quarter of the world’s population to gather, to discuss and to understand. We are proud that we are sister members of the Commonwealth with Canada. We are also proud that the Queen of the United Kingdom is Queen of Canada.
It is this great country that has asked us to enact the legislation before us today. It is incongruous that Canada should have to make that request of us, 115 years after the passage of the first British North America Act in 1867. Canada has in every real sense been independent for a very long time. That independence was given formal recognition by the Statute of Westminster in 1931. At that time, however, the Canadians had not been able to agree on a formula for the future amendment of their constitution. Thus it was that section 7 of the Statute of Westminster provided that nothing in the Act should be 293 deemed to apply to the repeal, alteration or amendment of the British North America Acts. The power of amendment was thereby retained, at Canadian request, by the British Parliament.
However, the Statute of Westminster also recited in the third paragraph of its preamble that, in accordance with the already established constitutional convention, No law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion. The request and consent of Canada is evidenced by the approval of a resolution of both Houses of the Canadian Parliament addressed to the Queen requesting the enactment of the proposed measure by the British Parliament. We have enacted about 14 amendments to the British North America Acts since 1867. Not just since 1931, but in all cases since 1886, this has been done at the request and with the consent of the Canadian Parliament.
The effect of the Statute of Westminster was that the status quo on amendment of the Canadian constitution was retained until agreement could be reached in Canada on methods of constitutional amendment. It was expected, no doubt, that that process would start immediately and agreement would be reached soon. However, the process was slowed by the preoccupations of the depression and then of the war. It was not until much later that the search for a solution was seriously renewed. That process has culminated in the Bill now before the House.
The long title is: A Bill to give effect to a request by the Senate and House of Commons of Canada. This request was in the form of an Address from the Canadian Parliament to the Queen, which was approved on 2 December 1981 in the House of Commons by a vote of 246 to 24, on 8 December in the Senate by a vote of 59 to 23 and delivered to Her Majesty on 9 December. The first preamble to the Bill reflects the terms of the Address and makes it clear that everything that follows the first preamble forms part of the Canadian request. That request has three elements: first, the amendment of the Canadian constitution by the provision of a charter of rights, and, secondly, the conferral of full power on the Canadian Parliament to amend the constitution under an agreed formula.
Both of these are contained in schedule B. The third part of the request is for the termination of the power of the United Kingdom Parliament to legislate for Canada. This is effected by clause 2. Schedule A, of course, is a translation into French of the measure itself.
In your ruling just now, Mr. Speaker, you referred to the fact that the Canadian Federal Parliament was bilingual. All Acts of the Canadian Federal Parliament are in both English and French. This has been the case since at least 1867 when, under section 133 of the British North America Act 1867, both languages were designated as having equal authority and were prescribed for use in the Federal Parliament.
The present legislation has come to us in both languages because the Canadian Parliament wished thereby to give full recognition to the official place of the two languages in a request which was so fundamental because the Constitution Act which forms schedule B to the Bill, 294 together with the statutes and orders listed in the schedule to the Constitution Act, will form the new Canadian constitution.
The Canada Bill, when passed, and the Constitution Act will have the force of law in Canada in the same way as Acts of the Federal Parliament. Therefore, they were drafted and passed by the Canadian Parliament in both languages from the outset.
There are examples of United Kingdom Acts which give the force of law in the United Kingdom to schedules containing the texts of conventions on treaties in both English and French—the Carriage by Air Act 1961, the Carriage by Air (Supplementary Provisions) Act 1962, and the Carriage by Air and Road Act 1979.
Furthermore, those Acts provide that, if there is any inconsistency between the English and French texts, the French text shall prevail. But in this case the schedule to the Bill, whether in English or in French, will have the force of law only in Canada.
The House will recall that when the Canadian Government first put forward their constitutional proposals in Canada, towards the end of 1980, they were opposed by eight out of 10 provinces. On 30 January last year the Foreign Affairs Committee of this House published its first report entitled: The British North America Acts: The Role of Parliament”. It concluded, if I may over-simplify, that, if a request from Canada for the patriation of the constitution affected Canada’s federal structure and was opposed by a majority of the provinces, the United Kingdom Parliament should exercise its judgment on whether the request conveyed the wishes of Canada as a federally structured whole”. Under such circumstances, the report said, the United Kingdom Parliament might decide that the request was not a proper one, because it did not enjoy a sufficient level of provincial concurrence.
I take this opportunity to pay tribute to the detailed work of the Foreign Affairs Committee on the Canadian constitution. It is a complex subject and its report is very lucid. The Government, in their reply to it, made it clear how useful they found the material.
In the event, the United Kingdom Parliament is not now confronted with the situation envisaged by the Foreign Affairs Committee in its first report.
Mr. Michael English (Nottingham, West) The right hon. Gentleman has referred to one of the Committee’s reports. Does he agree with the strictures in the most recent report? Does he accept that previous Foreign Office Ministers have been badly advised?
Mr. Atkins I am coming to the third report.
As I said, we are not now confronted with the situation envisaged in the first report. Following that report, the constitutional question was considered by the Supreme Court of Canada. The court decided on 28 September, by a seven-to-two majority, that there was no impediment in law to the making of a request for constitutional amendment by the Canadian Federal Parliament without provincial concurrence. Equally, however, the court concluded, by a six-to-three majority, that there was a constitutional convention about provincial assent. The court did not conclude that unanimity was necessary for any constitutional amendment affecting federal/provincial 295 relationships—and this would include the proposed patriation measure—but, although not being prepared to quantify the exact level of assent necessary, said that at least a substantial measure of Provincial consent is required”.
Mr. Julian Amery (Brighton, Pavilion) My right hon. Friend referred to previous amendment of the constitution. Have any amendments that touch provincial rights ever been taken without unanimity among the provinces?
Mr. Atkins Yes, Sir. The British North America Act 1907, which affected the provinces’ rights, was opposed by British Columbia, both in Cananda and in the United Kingdom, but it was, nevertheless, passed.
Following the Supreme Court judgment, the Canadian Government, as we know, embarked on a further effort to seek an agreement with the provinces. On 5 November a revised package of proposals acceptable to nine out of the 10 provinces was announced. Quebec alone was not party to the agreement. We therefore have before us proposals which have been agreed not only by the great majority of provinces, but which have been approved, as I have said, by both Houses of the Canadian Parliament.
Those new circumstances were acknowledged by the Foreign Affairs Committee in its third report, published on 18 January. The Government entirely agree with the views expressed in that report as to the propriety of the United Kingdom Parliament enacting the proposals as requested.
The Canada Bill contains not only the all-important clauses regarding patriation and future amendment, but a charter of human rights and freedoms. The charter is the most significant addition to the existing constitutional arrangements enshrined in the British North America Acts. It has been controversial in Canada; it is still contested by Quebec and by some of the indigenous peoples. I now propose to say a word about each.
It is, of course, a matter for regret that the present proposals do not have the unanimous support of the Canadian provinces. But, as I said, the Supreme Court of Canada considered that the consent of all the provinces was not required, either by law or by constitutional convention, to the making of a request to us. No one would deny that nine out of 10 provinces constitutes the substantial measure of provincial consent to which the Supreme Court referred.
We would all wish that outstanding disagreements could be resolved, but the Government believe that this is a matter for the people, the provinces and the Parliament of Canada to decide. We do not believe that the existence of the disagreement provides grounds for declining to act, as we have always acted, upon the request of the Canadian Parliament.
Somewhat similar considerations apply to the indigenous populations of Canada. Their existing rights are specifically recognised in the Constitution Act in schedule B to the Bill; but a number of them have made it known in Canada and in this country that they are dissatisfied and oppose the passage of the Canadian proposals through this Parliament without additional safeguards. Some of the Indian groups refer to their ancient treaties with the Crown and maintain that there are United Kingdom obligations arising from these which persist to the present day.
As the House knows, three groups have instituted proceedings in the courts in this country. Indeed, in one instance they go so far as to invite a ruling from the courts that Parliament is not free to pass this Bill without their 296 consent. These proceedings are still before the courts, but you have ruled, Mr. Speaker, that that fact is no impediment to Parliament’s proceeding, if it thinks tit, to discuss and enact legislation, despite the fact that the legislation, if enacted, will necessarily determine the outcome of the litigation or render its continuation pointless.
I know that there are hon. Members who would wish the House to delay consideration of the Bill until the proceedings are over. But it is not as though we were dealing only with the one case brought by the Alberta Indians. As I said, two further sets of legal proceedings have already been instituted. In one, a statement of claim was served on 22 January. In the second, a statement of claim has not yet been served. There can be no certainty about when the various legal proceedings will be concluded, let alone about the prospects if any further litigation were to be started, which is not at all improbable.
Mr. Clinton Davis Why, then, did the Government defer the Second Reading pending the Court of Appeal proceedings? Having taken that decision, why does the right hon. Gentleman now decide to go ahead with the Second Reading and Committee stages, with proceedings pending in the House of Lords?
Mr. Atkins The Bill was brought forward at the Government’s early convenience in response to a request. The judgment of the Court of Appeal encouraged us to proceed. It was clear and definite. As I say, there conies a moment when one cannot wait for further possible litigation. Otherwise, we might wait for a long time. We might easily wait for years. The Government do not believe that the request made to us by the people of Canada should be deferred that long.
Mr. Kevin McNamara (Kingston upon Hull, Central) We stated in the first report that we do consider that it would be constitutionally questionable as well as politically undesirable for the processes leading to UK legislation to be hastened so as to pre-empt the decision of Canadian courts. Indeed, that could be interpreted as involving the UK authorities in improper intervention in the internal affairs of Canada. At present the province of Quebec has a case before the Supreme Court of Canada. In view of the time that the court took to decide the other appeals from Manitoba, Newfoundland, Quebec and so on, should not the Government have delayed the matter so that Quebec does not feel unfairly treated because it has not been allowed to exhaust its legal rights in Canada, especially as the court’s decision will probably go against Quebec anyway?
Mr. Atkins The report was written before the judgment of the Supreme Court of Canada. The proceedings now instituted by Quebec are before not the Supreme Court, but the Quebec court. It is our belief, as I have stated, that we owe a duty to the people of Canada, who have expressed their views through their elected representatives, to proceed with the Bill and that is what we have decided to do. I think that I have spent long enough on this matter.
Mr. David Ennals (Norwich, North) rose—
Mr. Atkins The right hon. Gentleman will surely make his point in a speech, Mr. Speaker, if he catches your eye.
Mr. Tony Marlow (Northampton, North) rose—
Mr. Atkins No, I think that I will not give way.
297 I was dealing with the Indian peoples, and I had said that it has consistently been the view of the Government, and has been given in evidence to the Foreign Affairs Committee and repeatedly been explained to all those representing Indian interests, that any treaty or other obligations which still subsisted became the responsibility of the Government of Canada with the attainment of independence, at the latest with the Statute of Westminster 1931, and that it is to the Government of Canada that the Indians must look for the solution of any of their problems.
The Foreign Affairs Committee agreed with that view and said in paragraph 9 of its third report: Indian rights and affairs have been an exclusive responsibility of the Canadian Government and Parliament for generations”. Furthermore, as the House knows, the Court of Appeal, in a unanimous judgment on 28 January, came to the same conclusion. It is the Government’s view that in these circumstances we would not be justified in waiting any longer before acting on the Canadian Parliament’s request.
There is one other matter that I want to mention, because I think the House should know the Government’s view about the possibility of amendments being made at a later stage, assuming that the Bill gets a Second Reading tonight.
Mr. English rose—
Mr. Atkins You have ruled, Mr. Speaker that the body of the Bill is amendable. I shall merely give the Government’s view about that.
I have referred to the preamble to the 1931 Statute of Westminster, which says: It is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as a part of the law of that Dominion otherwise than at the request and with the consent of that Dominion”. It would, of course, be inconsistent with this “request and consent” convention for Parliament to make amendments which have not been requested and consented to by Canada in the first place. This is also the view of the Foreign Affairs Committee, as expressed in conclusion 11(iv) of its first report. In the light of this, I have to state the clear view of the Government that any amendment to the Canada Bill which may be put forward should not be passed by the House. That will be the advice of the Government during all the subsequent stages of the Bill.
Mr. English The right hon. Gentleman is, I think, confusing the issue, because the Committee can make amendments which may not be passed on Third Reading and may not ultimately be passed by the other place. I think that we should not discuss that at this stage. However, the right hon. Gentleman promised that he would refer to the strictures mentioned in the third report of the Committee on the wrong advice given to his predecessors in office, of both parties. He has mentioned the third report, but he has not mentioned that. He promised me that he would.
Mr. Atkins As a matter of fact, I gave no such undertaking. I told the hon. Gentleman that I would refer to the third report, and I have done so. I do not propose to refer to the whole of it. I shall refer to those pieces to which I wish to refer, and that is all that I shall do.
Mr. English Are we, as Members of this House of Commons, really going to be fobbed off? Here is a clear case—
Mr. Speaker Order. It is clear already that the hon. Gentleman is making not a point of order but a point of argument. There is a world of difference between the two.
Mr. English I bow to your ruling, Mr. Speaker, but, on behalf of the whole House, I put it to you that if Ministers of both parties are ill advised, and if a Select Committee points out that fact, it should surely be mentioned by the Minister responsible.
Mr. Speaker It is not for me to say whether Ministers are ill advised. I should be very foolish to start on that game.
Mr. Atkins I do not know about my predecessor. He can speak for himself. I am satisfied with the quality of my advice. It is not for me to say which amendments are selected for debate, but I thought it proper to tell the house at this stage, before hon. Members decide how to vote at the end of this Second Reading, that the Government’s advice during the subsequent stages of this Bill will be that amendments should not be passed, because, if they were, it would be inconsistent with the”request and consent” convention which I read out from the Statute of Westminster 1931.
Mr. J. Enoch Powell (Down, South) I understand that the right hon. Gentleman is warning the House that the Government would advise against the acceptance of amendments, on the ground that to accept them would be inconsistent with the convention that no legislation be passed for Canada except on the request of the Canadian Parliament. I take it, therefore, that the Government’s advice will not extend to the omission of parts of the existing Bill, since that would not fall within the mischief of the principle that he has enunciated.
Mr. Atkins It would, because we have been requested, and been given the consent of the Canadian Parliament, to enact a piece of legislation as a whole. That will be my advice to the House. It is, of course, for the House to decide whether to take that advice, but I thought it right at this stage to make it clear to the House before we decide whether the Bill should be read a Second time.
Earlier in my speech I said that it was incongruous that Canada should have to come to the United Kingdom Parliament on matters affecting her constitution. It is more than that. In 1982 it is an anachronism which is totally out of keeping with Canada’s place in the world.
The present Government of Canada have sought tirelessly to find an acceptable way of amending their own constitution, of taking it into their own hands and of providing a method of amending it in the future. They have succeeded where all their predecessors over 50 years have failed, and it reflects the greatest credit on their efforts.
The Parliament of Canada is asking us to agree to what it itself has devised and agreed. If the Bill goes through, it will be the last time that Canada has to ask us for any legislation. Its constitution will be its own. That is exactly as it should be, and it will mean that we will be able truly to fulfil the definition, set out at the 1926 imperial conference, of the relationship between the countries of the Commonwealth: 299Autonomous Communities, equal in status, in no way subordinate to one another in any aspect of their domestic or international affairs, but united by a common allegiance to the Crown. I invite the House of Commons to do what our fellow parliamentarians in the Senate and the House of Commons of Canada have asked, and give the Bill a Second Reading.
4. 18 pm
Mr. Denis Healey (Leeds, East) This Bill and the issues it raises have already aroused deep emotions on both sides of the House, but for 24 million Canadians it is of immense and historic importance because it represents the final achievement of absolute independence, combined with some important changes in the constitution of Canada. We are, after all, discussing the future of the second largest land area in the world, with a population larger than that of most members of the United Nations, a country which has produced some of the greatest figures in our own history books and those of France, and which made a major contribution to Allied victory in two world wars. Since 1945, Canada has made a major contribution to shaping the post-war world. Many of us will recall the role of Mr. Pearson as the Canadian Foreign Secretary in the foundation and early years of NATO; and successive Canadian Governments have acted as a bridge between North and South on major issues such as Suez in 1956, the South African issue over the years and the Caribbean and Central America at the present time.
However, although Canada has been for practical purposes independent for over 100 years, and has had all the other attributes of sovereignty for half a century, it has not had the right to amend its own constitution. As the Lord Privy Seal said, successive Governments and Parliaments of Canada since 1931 have specifically asked us in Britain to retain exclusive power to amend fundamental parts of their own Canadian constitution.
We in Britain have never sought that power, but we have always been unable to terminate it without the request and consent of Canada. There is no doubt that the time was long over due that we should have received that request and consent. Because the past 50 years have seen enormous changes in Canada and in the world in which it lies, large scale immigration has affected the balance of the population inside Canada. New technologies and industries have arisen. Oil has been discovered in large quantities, and there has recently been an enormous increase in the importance of oil. It was high time to end an anachronism, yet until Prime Minister Trudeau grasped the nettle 18 months ago no Canadian Government dared risk the arguments that would inevitably follow a decision to ask Britain to patriate Canada’s constitution.
The initial approach made by the Canadian Prime Minister, and some of the rhetoric that accompanied it, aroused serious misgivings in the British Parliament. Those misgivings reflected similar misgivings in Canada itself. Opposition Members here were particularly influenced by the fact that our sister party, the New Democratic Party, was deeply divided on the initial approach, with the Government of Saskatchewan under Mr. Blakeney taking a completely different line from that of the federal party under Mr. Broadbent.
The House of Commons Foreign Affairs Committee described the misgivings in its first report, and made itself as unpopular with the British Government as with the Canadian Government in doing so, but I believe that the 300 Committee had no alternative. The central problem that it came to grips with was how the federal nature of the Canadian constitution affected the right of the Canadian Government to require automatic approval of is requests by the British Government and House of Commons.
A year ago we faced a situation in which the Canadian Government were determined to use their legal powers to determine the new constitution without regard to their constitutional responsibilities, yet they were simultaneously demanding that the British Government should act in accordance with their constitutional responsibility and renounce use of their legal powers. The risk of a confrontation between the two Parliaments was real a year ago, but it was removed when the Supreme Court of Canada, by a majority decision, clarified the issues along lines that our own Foreign Affairs Committee had supported. The Canadian Government then reached agreement with nine out of the 10 provinces, substantially satisfying the criteria suggested by the Committee in its first report.
A year ago, the Canadian Government’s request was opposed by eight out of the 10 provinces. Now it is supported by nine out of the 10, and thus, to quote the words of the Foreign Affairs Committee, conveys the clearly expressed wish of Canada as a whole”. We in Britain must be grateful to the Canadian Prime Minister for his readiness to compromise and to the indefatigable Minister of Justice, M. Jean Chrétien, for his cheerful and beguiling energy during the long arid complicated negotiations in which he was involved.
In its third and final report on the matter, the Foreign Affairs Committee said: We therefore think that Members can properly welcome this opportunity finally to discharge the responsibilities of the UK Parliament to the federal community it established in Canada in 1867 and for whose convenience it retained anomalous legal powers for fifty years after its first attempt to transfer them. I hope that we can all say “Amen” to that. I believe that we should indeed welcome this opportunity to terminate the responsibilities that we have carried for so long and so reluctantly, although I have some reservations about the timing of this debate, reservations that I shall come to in a moment.
As the right hon. Gentleman said, many problems remain unresolved by the Bill. Some may feel that some problems have been mistakenly resolved in the Bill. The opposition of Quebec is undoubtedly unfortunate. We all regret it. It is particularly unfortunate at a time when the State of Belgium risks even splitting into two as a result of the conflict between Fleming and Walloon, a conflict based on differences of language and culture not very dissimilar from the differences between Quebec and the other provinces of Canada. However, as the right hon. Gentleman said, that is no ground for opposing the Bill. I hope that, to quote Prime Minister Trudeau, this empire will not strike back on this or any other issue.
The plain fact is that many countries have problems of that nature which they must resolve by their own efforts internally. We have not altogether dissimilar problems in Scotland and Wales on which we would not want the Canadian Parliament to interpose its views. I dare say that if all the Canadians of Scottish origin returned to Britain the economic and political balance of our own country would be very different from what it is today.
However, there is also concern—more widespread on the Opposition Benches, I dare say—about the position of the aboriginal peoples of Canada.
Mr. Raymond Whitney (Wycombe) Does the right hon. Gentleman agree about the importance of taking note of the point of view of the Liberal Party in Quebec, which has now supported the propositions of the Federal Government? In the last Quebec Assembly elections the Parti Québecois, the party of government, secured 49 per cent. of the vote and the Liberal Party secured 46 per cent. Therefore, while we take serious cognisance of the opposition of the province of Quebec, there is a sizeable minority in the province which accepts the new provisions.
Mr. Healey I take note of everything that is relevant, but I am surprised that a former member of the Diplomatic Service should seek to trap me into an argument between the Government and Opposition of a province of a friendly Commonwealth country. I hope at any rate that in future the hon. Gentleman will take the views of the Opposition in this House as seriously as he takes the views of the present Government.
As I was saying before I was so pleasantly interrupted, there is real concern about the position of the aboriginal peoples, the Indian, Inuit and Metis peoples, but particularly the Indians, who constitute over 1 per cent. of the population and I understand are the most rapidly growing part of the Canadian population.
When I heard that the Indian Association intended to refer to the Court of Appeal British responsibility in this regard, I asked the right hon. Gentleman to defer Second Reading until the court had given its judgment, and I thank him for doing so. We now know that the Court of Appeal has ruled against any residual responsibility lying on this House, on the British Government or on the Queen as Queen of the United Kingdom. The Foreign Affairs Committee took the same view even in its first report, and in its third report it pointed out: The rights of…native peoples are acknowledged more amply in the present request than in the original proposals”. That is undoubtedly so, but the legal processes which were started by the application to the Court of Appeal are not yet exhausted. The Indian Association has now petitioned the House of Lords on the matter. When I heard that it was likely to do so I asked the Lord Privy Seal to defer Second Reading until the petition had been heard and the whole judicial procedure had been exhausted, as it will be in a few weeks’ time. I greatly regret that the right hon. Gentleman did not find it possible to accede to that request.
I well understand the desire of the Federal Government and of all the provincial Governments but one in Canada to bring this story at last to an end. There is no doubt that it has distracted the attention of Canadian Governments and Parliaments from other important matters for a long time, but after at least 50 years I cannot help feeling that a few more weeks should not be all-important. I have some fear lest the attempt to rush this matter through before the Lords have given their judgment may not shorten the process but prolong it.
If the purpose of this precipitousness was to get the Bill into law before 15 March when the Quebec court of appeal is to hear a case put by the Government of Quebec I cannot feel that there is any guarantee that this haste will assist in achieving that purpose. It is difficult to tread a proper path between the law’s delays and the proud man’s contumely, as the Government have had to do for about 18 months now, but it is unwise to press the matter, as they are doing, before the judicial process is exhausted.
302 Nevertheless, I have no doubt myself that on the substance of the issue before the House of Lords the findings of the Select Committee on Foreign Affairs and of the Court of Appeal are right. I do not believe, as has been stated many times by the Select Committee on Foreign Affairs, that this House has any status in seeking to affect or change the position of the aboriginal peoples in Canada, but it is right that I should take this opportunity to express a concern which many of us feel about the position of the aboriginals, although I do not wish to block or amend the Bill because I agree with what the right hon. Gentleman has said on that: it should be passed as it stands. If it were to be amended that could open a major and unnecessary constitutional crisis between us in Britain and the people of Canada: but one has the right to ventilate some of the concerns in the hope that the authorities in Canada will take account of our views.
Like many other hon. Members on both the Front and Back Benches, I have been bombarded over the last 12 months by representations from those who purport to represent not just the aboriginals but almost every other interest in Canada. I have had a chance to discuss the question of aboriginal rights with representatives of various groups of those concerned. I must tell the House that they are as divided on what precisely should be done to help them as the parties in this House are between the wets and the dries, or the softs and the hards, or the Steelites and the Smithites, or the Jenkinsites and the Owenites.
There is no agreement among the Indians themselves about precisely what they most object to and precisely how to put it right. At the extreme we are asked to reject the Bill in its entirety or to ensure that it does not come into force until or unless the Indians are given the right to form independent states in Canada, if they wish to exercise that right. I doubt if many hon. Members would wish them to have that right. This is a point which has been put by some representatives of the Indian peoples in Canada.
A more moderate and, I found, a more widespread view in regard to the reference in clause 35 to the existing aboriginal and treaty rights is that the word”existing” may be held in some way to limit the rights. Otherwise it would not have been introduced because it is either otiose or in some way limiting.
The other concern which these people have is that the participation of the aboriginal representatives in the discussion at next year’s conference which will define and identify those rights may be inadequate to ensure that the rights are properly defined and fully protected. That is the nub of the case which the more moderate representatives of the Indian peoples have put to us. I know that some of my hon. Friends share this concern. Although we have no legal or constitutional right to raise these matters, no doubt some Members would find it much easier to support the Bill if we could have from Canada an authoritative statement which would allay the concern which I have just expressed.
I am well aware that even the expression of this interest and concern may be resented by some in Canada, but the same concerns have been expressed in Canada’s own debates, particularly by representatives of our sister party, the New Democratic Party. I have noticed that Canadian Members of Parliament are no more reluctant than British Members of Parliament to discuss the internal affairs of other countries when they feel strongly about them, whether it is South Africa or Central America. I hope that 303 what is said in this debate and in Committee will evoke some response from the Canadian authorities, because the Bill will get a much larger and a much freer majority if the concern can be met in some way.
The debates on this Bill will be the last in which the House will he required to involve itself in the Canadian constitution; I think we are all grateful for that. In my experience constitutional arguments are always the most exhausting, frustrating and often fruitless, certainly for our House of Commons. I know that my right hon. Friend the Leader of the Opposition will say”Hear, hear” to that because he succeeded in rendering at least one debate totally fruitless with assistance from the right hon. Member for Down, South (Mr. Powell) some time ago.
The debates which have taken place in Canada have managed to resolve this immensely difficult problem from which earlier Canadian Governments have shied away for half a century and in a way which must be profoundly satisfying to the people of Canada as a whole. For that reason the Bill must commend itself to the House. I hope that the House will pass the legislation unamended. I know I speak for the whole House when I wish for the people of Canada the happiest, most prosperous and peaceful future when the Bill becomes law.
Mr. Speaker Before I call the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) I want to tell the House that seven Privy Councillors have indicated to me that they hope to speak in the debate. The House knows the interest that there is on the Back Benches. I hope, therefore, that those who have the advantage of being called because they are Privy Councillors will bear in mind that we will be able to call many more Members if speeches are brief.
4. 39 pm
Sir Derek Walker-Smith (Hertfordshire, East) The House embarks on this important Bill in a spirit of dedication but with a natural reluctance born not of indifference—far from it—but of respect, affection and solicitude for the position of Canada as a well-loved and independent sister nation in the Commonwealth. It is, after all, half a century since the enactment of the Statute of Westminster and more than a century since the British North America Act. Much has changed in vital respects, not in good will and affection but in constitutional relationships. It is axiomatic that Britain plays no part in the internal affairs of sister nations of the Commonwealth and has in principle no legislative function in regard to them.
Section 4 of the Statute of Westminster provides: No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion…unless it is expressly declared…that that Dominion has requested, and consented to, the enactment thereof. That is the general rule, but here we are faced with the exception—the legacy of an enactment passed in mid-Victorian times at the apogee of British imperialism and the British raj, all seemingly remote today. However, the exception is specifically written into section 7 of the 1931 Act at the express request of Canada. So the duty, unwelcome as it is, lies upon us and we are here to discharge it.
The broad avenue of our approach is clearly marked. It is a desire to do what is right for Canada, to respect its sovereignty in its affairs and to hand over in law what must 304 surely belong to it in principle—suzerainty over its constitution. Put thus, it must sound a simple task arid a simple decision that we must make today. However, in a sense it is like Clausewitz’s definition of war: Everything is simple but the simplest things are difficult I shall show the difficulty that appears to arise in giving effect now—I stress the word—to that proper and seemingly simple aspiration.
First, may I express my appreciative thanks to al I those, both public and private—the High Commission here and representatives of the Federal Government, agents general, corporate bodies and private citizens—who have been good enough to talk or write to me and invite my consideration of their views. I am deeply grateful to all of them.
I am not wholly unfamiliar with or inexperienced in the consideration of the constitution of Commonwealth countries. It has been my task, in my professional capacity as a Queen’s Counsel, to try to interpret and advise on many of them for the benefit of my clients. However, I have no professional interest in the subject matter of the Bill and no technical interest of any description.
I have only two interests to declare. The first is regard for Canada as a sister member of the Commonwealth, and the second is regard for compliance with the principles of constitutional propriety and the rule of law, which link together this unique association of free peoples. Their importance cannot be over stated. In Burke’s words, they are ties light as air, but strong as the links in a chain of iron”. Why should there be any difficulty today in giving effect to the expressed will of the Canadian Parliament and enacting its constitution in the form desired? All would wish, other matters being equal, to meet the desires of our sister Parliament, and none would wish to retain for a moment longer than necessity dictates or principle requires a jurisdiction so ill suited to contemporary concepts of the Commonwealth.
The difficulties arise because we are on unfamiliar ground. We are not dealing with the relative simplicities of a unitary State with no written constitution and operating only under the principle of the sovereignty of Parliament. Here we are accustomed to the omnipotence of Parliament expressed in the classic phrase: Parliament can do everything except make a man a woman or a woman a man. That example has perhaps lost some of its striking impact due to the marvels of modern surgery since those times.
No such principle applies in a federal State. Parliament in a federal State can do only that which is lawful and constitutional, and the courts are the custodians of the constitution in those States. Therefore, our position is not only unwelcome but paradoxical. On 30 April 1981, I asked my right hon. Friend the Prime Minister: Does my right hon. Friend agree that both the Government and Parliament in Britain would be well advised to await the informed guidance of the Supreme Court in Canada before taking up any fixed positions, in view of the rather paradoxical circumstance that we in this House of Commons, as the representatives of a unitary State without a federal constitution, are not best placed to advise on the intricacies of a federal constitution in written form? My right hon. Friend was good enough to reply: I wholly take and agree with my right hon. and learned Friend’s point. I am grateful to him for putting it”—[Official Report, 30 April 1981; Vol. 3, C. 907.] At that time I expected that one judgment of the Supreme Court would clear matters up. However, 305 although judgment was given five months later, it did not achieve the clarity for which we could have hoped. As the House knows, the court gave answers to three questions: first, that the federal-provincial relationship is affected and that there exists a constitutional convention that action by the British Parliament be not invoked and amendment of the constitution be not enacted without the prior agreement of the provinces although, as a matter of law, no such agreement is required. Two difficult questions were left outstanding. The first was the dichotomy between law and constitutional convention and the significance attaching to the latter. The second was the meaning of “agreement of the provinces” and the quantification by which such agreement is to be measured.
As to the dichotomy, the constitutional convention must be seen against a background of the origin and purposes of the federation. That is well expressed in a judgment of the Judicial Committee of the Privy Council. Right hon. and hon. Members who are eager to go to primary sources will find it in 1932 Appeal Cases. I would have cited the case, but in deference to what you have said, Mr. Speaker, I shall leave it for hon. Members to read for themselves. That citation illustrates clearly the duality of federation—the preservation of the rights of the provinces, with sufficient power to the Federal Government on matters of common concern. To achieve the highest common factor of those two separate and sometimes conflicting concepts is the aim of the constitution by which its conventions must be judged. That is a difficult balance to strike involving difficult judgments, at least for us as legislators of a unitary State.
Against that background, the Supreme Court analysed the nature of a constitutional convention. In its judgment it adopted a passage from Sir Ivor Jennings’ “The Law and the Constitution”, wherein he identified a method of establishing whether there is a constitutional convention. Again, right hon. and hon. Members can read it at page 136 of the fifth edition of Sir Ivor’s work.
The important matter in the dichotomy between law and constitutional convention is that no one should underestimate the importance of constitutional convention and say that, as a matter of law, it is of less importance. The Supreme Court put the matter aptly in the form of an equation: Law plus constitutional convention equals totality of constitution. In the pending case, the Procureur-General of Quebec maintains two propositions. As to unanimity, he submits that the consent of Quebec is required because constitutional convention imposes a requirement of unanimity. The difficulty for us is that the Supreme Court did not determine the degree of assent required. It stated: The question is to determine if conventionally provincial assent is obligatory and not if, in this case, it ought to be unanimous. It did not have to consider unanimity in those different circumstances. The Supreme Court concluded that it expressed no opinion on the degree of consent from the provinces and recalled that it suffices that the court decides whether there is at least an appreciable degree of provincial consent.
That being the primary submission, there is an alternative submission that the consent of Quebec is required because the principle of duality is basic to Canadian federation. It is important to get into perspective 306 the question of unanimity of the degree of provincial assent required. There is little doubt that as a matter of vires, strict law, provincial unanimity is not a condition precedent of legislation by the House.
However, we are not concerned with the question of vires. We are concerned not with what we, as a Parliament, have the power to do, but with what we, as a Parliament, ought to do. Clearly, though we may technically have the power to legislate without regard to the requisite degree of provincial assent, it is a material consideration in guiding us as to the proper exercise of our discretion and discharge of our duty. Obviously, that is the more so if it should turn out, on the final analysis of the courts of Canada, that the Canadian Parliament had acted under a misapprehension about the degree of assent constitutionally required, which would strike away the foundation for its resolution.
Mr. Jonathan Aitken (Thanet, East) Will my right hon. and learned Friend allow me?
Sir Derek Walker-Smith I have very much in mind Mr. Speaker’s adjuration. I think that we would be more popular with the House if my hon. Friend, whose opinion I greatly value, communicated his point to me in a more private way.
Fundamental questions of interpretation and clarification are therefore outstanding. As the House knows, steps have been initiated to have them resolved by the appropriate procedures. The Procureur-General has instituted his appeal in the Quebec Court of Appeal and submitted this question for the court’s consideration. As it is short, I shall read it to the House, with the warning that it is my translation. I hope that it is accurate. Is the consent of Quebec necessary by constitutional convention for the adoption by the Senate and the House of Commons of Canada of a resolution having for its object to modify the constitution in a way doing injury to: (1) the legislative authority or legislature of Quebec by virtue of the Canadian constitution. (2) to the status or role of the legislature of the Government of Quebec at the heart of the Canadian Federation? I found that difficult to translate. I am sure that my right hon. and learned Friend the Attorney-General can give a better rendering of it. And does the objection of Quebec render the adoption of such resolution unconstitutional by convention? The Procureur-General submits that the answer to those questions is in the affirmative.
The Quebec proposition goes to the heart of the matter, because, if it is accepted that the objection of Quebec makes the resolution of the Canadian Parliament unconstitutional, clearly the House could hardly or properly give effect by Act of Parliament to an unconstitutional resolution.
I say nothing about the determination of this question. It is not a matter for me. What is material is that these outstanding and vital questions are awaiting resolution. It is not for us to anticipate the determination of the questions, and it is certainly not for us to prejudge the matter and conclude that submissions contained in 50 pages of argument by three learned Procureurs are an untenable proposition. I should not dream of doing so myself, and I hope that my right hon. and learned Friend the Attorney-General would not do so. I have great respect for him personally and for his learning, and he knows that that is no mere façon de parler. In the nineteenth century it was said that one could always quote Latin in the House 307 of Commons, occasionally Greek, but never French. However, that was on political grounds, and the basis of the saying has somewhat changed. Even if my right hon. and learned Friend were a Blackburn or a Sumner, I do not believe that he could brush aside summarily an argument awaiting hearing in this form.
Moreover, the case is to be heard very soon. It is listed in the Quebec Court of Appeal for 15 March. No doubt it will go to the Supreme Court on appeal by the losing side, and no doubt on an expedited hearing.
Mr. Aitken May I prevail on my right hon. and learned Friend on that matter?
Sir Derek Walker-Smith I think not. Mr. Speaker has given a fairly clear indication that I should continue.
Mr. Aitken I think that my right hon. and learned Friend has got it wrong.
Sir Derek Walker-Smith Very well.
Mr. Aitken I am grateful to my right hon. and learned Friend, for whose views I have great respect, and who has stated the legal position absolutely correctly. However, he has forgotten or omitted to say that the political situation is totally the opposite, because no one other than the Premier of Quebec signed an accord in April this year renouncing the Quebec veto. It is only now, since the situation has changed, that they are trying what is an entirely bogus legal ploy to re-establish, through the courts, a veto which the Premier on his own signature renounced many months ago.
Sir Derek Walker-Smith My hon. Friend talks about a bogus legal ploy, bringing to difficult questions of law and construction the certainty that attaches only to those who have never had to concern themselves with those matters. Nevertheless, to show the genuine good will that I feel for my hon. Friend, I respectfully express the hope, Mr. Speaker, that you will not hold it against him, if he seeks to catch your eye, that he has unnecessarily taken up a little of the House’s time.
As the House knows, the Quebec Prime Minister wrote to my right hon. Friend the Prime Minister: A final decision could be anticipated perhaps in September 1982. That judgment should conclude the constitutional argument. The timetable may be a little optimistic. These things often are. It will delay things a little, but it will not be a long delay relative to the history of the matter—six months or so in the context of 115 years, or about 0. 43 per cent., according to my calculator.
Ministers may think that postponement and short delay may offend the Canadian Government. That, of course, is a material consideration. However, I believe that greater offence might be caused to the Canadian people as a whole by actions which could, and no doubt would, be interpreted as a prejudgment of the constitutional issue and a virtual usurpation of the rights and jurisdiction of the Canadian courts.
To that offence will be added a further ground of offence—that the passage of the Bill would frustrate the appeal to the Appellate Committee of the House of Lords from the Court of Appeal decision in the Indian case, in which the petition for leave to appeal has already been settled by eminent counsel. Time prevents me now from canvassing the issue in the Indian case. I may refer to it at later stages of the Bill, if it proceeds further tonight.
308 I conclude by urging my right hon. Friends to reflect on the constitutional aspect to which I have adverted, and not to seek a Second Reading today. There is nothing unworthy or to be derided or apologised for in such a decision. Nor does it preclude or prejudice a subsequent introduction of the Bill when the constitutional position is clarified, assuming that the Canadian courts in the event hold the resolution of the Canadian Parliament to be constitutional, according to the accepted constitutional convention, as well as intra vires in the strictly legal sense.
There is nothing to prevent reintroduction of the Bill. In those circumstances, I might, and probably would, support it, because there is much good in the is, at least, a curate’s egg of a Bill—and in the charter that it embodies, and also because of the respect due to the request of the Canadian Parliament. However, that situation is hypothetical at this time, and is dependent on the resolution of the constitutional question.
Today the Second Reading of the Bill, whatever its merits, is premature. It seeks to pre-empt the proper constitutional processes. I am bound by the logic of my argument as expressed in my question to the Prime Minister, which I quoted. As it has turned out, it looks as if two judgments of the Supreme Court will be necessary for the full clarification of the constitutional position instead of the single judgment anticipated. No doubt that is inconvenient to Ministers on both sides of the Atlantic, but it cannot alter the logic of the situation.
Balancing the good in the Bill against its prematurity, my approach is that of the classic dictum of Arthur Hugh Clough: Thou shall not kill; but need not strive Officiously to keep alive.
Mr. Robin Maxwell-Hyslop (Tiverton) Will my right hon. and learned Friend give way?
Sir Derek Walker-Smith I shall not give way as I am about to finish my speech.
I never differ from the judgment of my right hon. Friends without deep thought and great regret. I know how devotedly long and laboriously my right hon. Friend the Prime Minister has been engaged in this matter, but there are imperatives that are greater than that of the guidance of the Whips Office. Those imperatives are at the heart of the matter—the principles of constitutional propriety and the rule of law. Having regard to those imperatives, I say to my right hon. Friends with great regret, but deep conviction, that I can have neither part nor lot in the thing that they seek to do.
5. 2 pm
Mr. James Callaghan (Cardiff, South-East) I was not sure whether the poetry to which the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) treated us meant that he would vote against the Bill or abstain from voting on it. I thought that it as an obscure reference that could lead him either into the “No” Lobby or to say that he did not intend to take part in the Division. I hope that the least he will do is to abstain and not vote against the Bill.
Sir Derek Walker-Smith indicated assent.
Mr. Callaghan I gather from the right hon. and learned Gentleman’s affirmative nod that that is what he proposes to do. I trust that the Government will not yield to his plea to put off the Second Reading of the Bill once we have embarked on this course.
309 I do not intend to judge whether the Government were right or wrong to introduce the Bill at this time. There are powerful arguments for it, but, if I may say so to an old colleague like the right hon. and learned Member for Hertfordshire, East, not only lawyers are involved in this matter, but politics and politicians.
Having embarked on this course and having presented the Bill, the Government have invited us to give it a Second Reading. If they were to back off in the middle of the debate in the light of the appeal made by the right hon. and learned Gentleman, I can conceive of nothing more likely to embitter relations not only between us and the Federal Government of Canada but between this Parliament and the people of Canada. Therefore, I hope that the request made by the right hon. and learned Gentleman, although I have every affection for him, will not be listened to. As a simple politician, I would not like to argue with the right hon. and learned Gentleman in the court, but I was not wholly convinced by his law. I believe that more than law is involved.
Although the Bill has been a long time coming, we have had plenty of warning of its arrival. During the last two years, like my right hon. Friend the Member for Leeds, East (Mr. Healey), I have received hundreds of letters from all over Canada. Two years ago, in my simplicity and naivety, I began to respond to them. I hope that those in Canada who have not had an acknowledgement from me during the past 12 months will take this as a generic acknowledgement of all their letters. To my relief, the correspondence has now died down, largely due to the fresh negotiations between the Federal Government and the provincial Governments, which led to an acceptable agreement being reached between most of those concerned.
As the right hon. and learned Member for Hertfordshire, East reminded us, those fresh negotiations took place because of the judgment of the Supreme Court last summer, which ruled that the original Bill would have altered the balance of powers between the Federal Government and the provinces.
Prime Minister Trudeau began new negotiations. I add my tribute to him. Those negotiations have resulted in the present Bill being placed before us in a form that has secured the consent of nine of the provincial Governments, but not of Quebec or of some of the Indians. In fairness to the Federal Government I should like to say to hon. Members—I dare say that many of them will know this from their contacts with Canadian Ministers—that when two Canadian Ministers, Mr. Mark McGuigan, the Minister for External Affairs and Mr. John Roberts, the Minister for Science and Technology, came to see me as long ago as October 1980, they assured me that the Federal Government had no wish to change the balance of power between themselves and the provincial Governments. Nevertheless, it seems as if they did so inadvertently. The judgment of the Supreme Court has led to the new negotiations.
I do not cast any doubts on the good faith of the Ministers who came to see me. I do not know what evidence my hon. Friend the Member for Newham, South (Mr. Spearing) has for doing anything other than that. I forecast to both Ministers at that time, as well as on other occasions, that opposition by the provinces, Quebec or the Indians would affect the attitude of the House. I urged 310 them to meet such opposition and offset it as far as possible before the Bill was placed before us. In my view, they have fulfilled that requirement. If, after the successful efforts to reach a large measure of common agreement in Canada, we in Westminster were now to refuse to enact the legislation, it would be an intolerable affront to a nation of 24 million people with a democratically elected Parliament.
A further factor would lead me strongly to oppose any attempt to delay or vote against the Bill, which is based on a broad measure of consent. Embarrassment to the Crown could be caused. The Queen is the Queen of Canada as well as of the United Kingdom. To say the least, it would be disconcerting if her Ministers in Canada were to offer different advice on a matter that concerned them from the advice offered by Parliament in the United Kingdom. The Crown would be placed in an invidious situation. The Lord Privy Seal gave us one reason why we should not amend the Bill. I shall add to that reason. That the Crown would be placed in an invidious situation is a further argument against making any amendments that hon. Members might be thinking of. Therefore, I hope and expect that the Bill will be passed in the form in which it has been presented. I believe that those arguments will appeal to my hon. Friends and to Conservative Members.
When the Bill is passed and when Canada is invested for the first time in her long history with final and total legal responsibility for the future of Canadian citizens, there will be important differences between her constitution and that of Britain. They arise because of the federal nature of Canada. The rights of the provinces must be upheld. That logically places a corresponding limitation on the powers of the Federal Parliament. There is good reason for that. Canada is not a culturally homogeneous nation; hence, the proposed constitution provides that the doctrine of parliamentary supremacy shall be fettered, a doctrine that we in the House would not readily accept for ourselves.
By the enactment of the proposed Canadian Charter of Rights and Freedoms, the Canadian people are entering into a solemn compact with one another. They can fairly argue—I completely accept the argument—that it is worth paying the price of giving Canadian judges greater powers, even at the expense of weakening Parliament. However, I would resist such a proposition if it were advanced in the House in respect of the different circumstances of the United Kingdom.
The Federal Government and the provinces have also carefully and fairly negotiated a procedure for amending the constitution. By doing so, they have achieved a result that has eluded their predecessors for 50 years or more. In the face of all that, if, at the last moment when we had legal jurisdiction, we were to intervene to alter those carefully worked out compromises that have secured the consent of the great majority in Canada, Britain would be acting as foolishly as King George III did at the time of the Boston Tea Party.
Nevertheless, as my right hon. Friend the Member for Leeds, East said, we have received representations from Quebec and from the Indian people. I am sure that Canadian Ministers will not consider it an unwarrantable intrusion if such matters are discussed during the final passage of this Bill.
There are more than 1 million Indians, and representatives of the 300, 000 so-called “treaty Indians” have expressed grievances and complaints about such 311 matters as education, language, unemployment, life expectancy and unsettled land claims. It is not possible for hon. Members in this House to judge how far such grievances are justified, if only because the Westminster Parliament has not concerned itself with Indian questions since the passage of the British North America Act over 100 years ago. If we were to take up these matters again after such an interval, we should find ourselves in continuing dispute with the Canadian Parliament, which has absorbed these responsibilities and whose Members would rightly regard Britain’s intervention as a gross infringement of their sovereignty, as we should if the circumstances were reversed. I hope that the right hon. and learned Member for Hertfordshire, East will agree—I am trenching on his ground, but I look at the matter a little differently—that Westminster’s obligations, which were originally undertaken by the Kings of England, have now passed into the responsibility of the Queen of Canada, advised by her Canadian Ministers.
Therefore, whatever sympathies we have with the Canadian Indians, I conclude that we cannot accept the basic plea of the Indian people that patriation of the constitution would be unconstitutional and that, as has been argued by some of their representatives, the Bill should be rejected. It would be perverse on our part to do so. Moreover, we would have no power to enforce remedies for any grievances that we might think were well-founded against the Canadian Government. The best prospect for the Indian people—I have listened to their representations with some sympathy—is for them to take up wholeheartedly, and with the same vigour that they have shown in their representations to us, the opportunities afforded to them by clause 37(2), which provides for constitutional matters and the rights of the aboriginal peoples of Canada to be discussed at a constitutional conference within 12 months of the passing of the Act with a view to their inclusion in the constitution of Canada. Clause 37(2) should be approached with good will by those who operate it.
At this last moment,. we are entitled to ask the Canadian Government to judge those rights and grievances as generously as possible. It was anobiter dictum of the Court of Appeal that they are extremely ill defined at present. I support the view of my right hon. Friend the Member for Leeds, East that it would be helpful to the House and would satisfy those who have made representations to us if an authoritative statement could be made by the Canadian Government which would flesh out some of what has been said so far.
Quebec stands in a special position. The right hon. and learned Member for Hertfordshire, East has taken us through some of the constitutional problems which arise. Quebec was a founder member of the modern State of Canada under the agreement which brought Lower Canada and Upper Canada together. Politically speaking, however, the representations from Quebec, with their strong emphasis on her unique position, ignore the development of Canada since the original union. At that time, there were no provinces west of Ontario. Since then, Manitoba, Saskatchewan, Alberta, British Columbia and others have all been added to the federation. I do not think it possible now—I speak politically, not legally—for Quebec to rely completely on what happened at the time of the union of Upper and Lower Canada.
I have read with great care the memorandum of 11 February prepared by the government of Quebec. It is a 312 well-argued document, as is the case with so many that we have received, and I deduce from it that they accept that in the past the Supreme Court of Canada has consistently preserved the exclusiveness of Quebec’s legislative sovereignty. Paragraph 11 of the memorandum states: Quebec’s legislative sovereignty has been preserved in the past and will be in the future in a similar manner”. I repeat, Quebec is satisfied that its exclusiveness has been preserved in the past and will be preserved in the future. As I understand the submission and the Bill, what is removed is the veto that Quebec can at present exercise to prevent the remaining provinces from going ahead on a course on which they are all agreed but from which Quebec dissents. I cannot accept, politically, that such a right of veto should be held by any one province in the federation, especially as clause 38(3) gives Quebec or any other dissenting province the right to opt out, so it can move out if it wishes.
Surely for one province to prevent the rest from acting together when it is itself allowed to remain outside the bargain would be a dog in the manger attitude. I repeat that I speak politically, not legally. No doubt these matters will have to be determined, but as the right hon. and learned Member for Hertfordshire, East, who is both a distinguished lawyer and a distinguished politician, will know, it is the political realities that will triumph in the end, and I believe that that is what will happen in this case.
Mr. Russell Johnston (Inverness) Does the right hon. Gentleman agree that the political reality in Quebec is that it would be impossible for a separatist Government to support a Bill designed to increase the strength of the federation?
Mr. Callaghan That may be so, but it is not on that aspect of the Quebec Government’s attitude that I wish to comment today, for reasons that have been given. The House must concern itself with the fact that in the Bill Quebec’s distinctive linguistic and cultural status—and it is distinctive—is entrenched in clauses 16 to 22 about the official languages and their use, and in clause 23, about rights in the language of instruction in schools. Moreover, if Quebec decides to opt out of any change which affects its exclusive legislative powers, clause 40 provides for financial compensation to be granted to it in relation to education or other cultural matters”. Only the future can show whether the Bill will lead to a hardening of opinion in Quebec in favour of seeking independence. Such a decision is at least four years away, due to the accidents of general and provincial elections. Fortunately, that will give plenty of time for the people of Quebec to judge how the new constitution has worked out and whether the hon. Gentleman’s fears are accurate. It is clearly not possible for the United Kingdom to resolve this long-standing debate. Only Canada and the Canadians can do that. I am a great admirer of Quebec.
In view of the point of order raised earlier, U should say that I have not been invited to Canada during the past two years and I have not been there, so I have nothing to declare, but I hope to go very soon. If I do not get an invitation after this speech, it will be very sad. Having travelled widely in Canada, including Quebec, on many occasions, I hope that the people of Quebec will not stand isolated but will use their tremendous capacity and potential to increase the prosperity and well-being of their own people in conjunction with the whole of Canada.
313 Canada needs Quebec, and Quebec needs Canada. It is worth all parties reaching out for agreement on these issues in Canada in a way that will strengthen the historic national identity of Upper and Lower Canada—a people separate from that of the United States, but much influenced by them and working in close harmony with that great country.
As the Lord Privy Seal and others have said, the latest round of negotiations has resulted in a historic compromise between the provinces and the Federal Government. Sometimes I thought that they would never be able to reach it, but they have now reached an agreement that will benefit all. It is a most important and encouraging sign that Canada has a great future ahead of her. By passing the Bill today, the British Parliament has an opportunity to take its part in settling a problem that has irked Canada for 50 years. I support the Bill in its entirety.
5. 20 pm
Sir Bernard Braine (Essex, South-East): Canada is a country for which all of us have deep affection and respect. None of us can have any pleasure in voicing criticism or disquiet about the Bill. If we do so, it is only for the most weighty reasons of constitutional propriety, and in defence of human rights.
The Bill is before us because only this Parliament has the power to repeal or amend the Canadian constitution. My right hon. Friend the Lord Privy Seal reminded us that our jurisdiction was reaffirmed, at Canadian request, in section 7 of the Statute of Westminster of 1931, but it is one thing to repeal or amend that constitution and another quite different thing to enact a wholly new constitution. With respect, I do not think it is right to advise the House that we should not amend the Bill. The Supreme Court of Canada accepted that the legal competence of our Parliament remains unimpaired, and it is for it alone to determine if and how it will act. More recently, in a judgment to which I shall refer later, Lord Denning ruled in the Court of Appeal that in point of law the power still rests in the Parliament of the United Kingdom to repeal, amend or alter the British North America Acts…To my mind, this shows that, in strict constitutional law, the Dominion of Canada is not completely independent. It is still tied hand and foot by the British North America Acts of 1867 to 1930. The dominion itself cannot alter one jot or title of those Acts. These undoubted powers make us fully responsible for what we do today. Furthermore, they place firmly upon our shoulders responsibility for the content of the Bill and its consequences to Canada and the United Kingdom.
Mr. Maxwell-Hyslop Will my hon. Friend give way?
Sir Bernard Braine I shall not give way. I have not yet developed my argument. My hon. Friend will, I hope, have the opportunity of catching your eye shortly, Mr. Deputy Speaker.
The title of the Bill is To give effect to a request by the Senate and the House of Commons of Canada. Before we agree to that request there are certain questions that we should ask. What if the request is constitutionally improper? What if the Supreme Court of Canada subsequently finds that the Bill falls short of the test that it applied last year on consent? What if it were to be a breach of solemn treaties entered into by the Crown with 314 the native peoples of Canada, or even of the spirit and intent of those treaties? If there is any doubt about any one of the answers, it would be an improper Bill, one without justification, and an unconstitutional constitutional Bill.
Had Canada simply requested us to repeal the British North America Acts, the obligation would have been to ensure that the request reflected the will of the Canadian federation as a whole. That is not what the Canadian Parliament is asking us to do. The Bill is far more complex. It encompasses a new constitution for Canada. It includes a detailed charter of rights and freedoms. We are being asked to provide the very framework for government, its continuity, and the protection of life and liberty in another country. Yet, if we enact the constitution contained in the Bill, we do so knowing in advance that it is strenuously opposed by Quebec, one of the two founding nations of the confederation, and by the native peoples, who can justly claim to be Canada’s first nations.
My right hon. Friend the Lord Privy Seal suggested that we should pass the Bill without demur. That was also the tenor of the speech of the right hon. Member for Cardiff, South-East (Mr. Callaghan). The Select Committee on Foreign Affairs made a similar recommendation. I accept that the Select Committee has played a valuable role. Its first report influenced the Canadian Government to think again before presenting us with a Bill that is not dissimilar to the measure now before us, but was bitterly opposed by eight out of the 10 provinces.
Indeed, had the Canadian Prime Minister not succeeded in winning over seven of those eight dissenting provinces, I have little doubt that this House would have exercised its power to reject his proposals. In truth, it is unlikely that the proposals would have reached us. Did not the Governor General of Canada make it plain last month that in those cirumstances he would have exercised his prerogative and called an election in Canada to block unilateral patriation?
Perhaps the most remarkable commendation of the Select Committee’s first report was that its conclusions anticipated the judgment of the Supreme Court of Canada. It will be recalled that the Committee advised that the United Kingdom Parliament is bound to exercise its best judgment in deciding whether the request, in all the circumstances, conveys the clearly expressed wishes of Canada as a federally structured whole”. On 28 September last the Supreme Court found that a substantial degree of provincial consent is required in a request to this Parliament for legislation that would affect provincial powers. It would not quantify the phrase “substantial degree”. It was sufficient for it to decide that a substantial measure of provincial consent was required.
The situation before the Supreme Court at that time was that only the provinces of Ontario and New Brunswick supported the federal resolution. Today the situation is different. Nine provinces now support the resolution, all of them English-speaking, and there is only one dissenting province, French-speaking Quebec, albeit one of the two founding nations of Canada.
I shall not comment in any detail on the reasons for Quebec’s refusal to accept the resolution and, therefore, the Bill. I am sure that hon. Members will have received the Quebec Government’s second memorandum, which sets these out clearly and cogently, and tells us, contrary to what my right hon. Friend said, that this is the first time 315 in the history of Canada that amendments have been proposed altering provincial powers against the will of Quebec.
Furthermore, the changes that the Canadian Parliament, with the support of the nine English-speaking provinces, wishes to impose on the one French province are not changes that it is able to bring about in Ottawa. It must ask an English-speaking Parliament at Westminster to do its work by proxy in a way that destroys the whole spirit and concept of the union into which two distinct peoples with two distinct cultures freely entered 115 years ago.
I remind the house that the Royal Arms of Canada symbolise that union, with the Crown flanked on one side by the Union Jack and on the other by the fleur de lys. As the Quebec memorandum says, the Bill strikes at the very heart of this alliance of the French and English-speaking peoples that gave substance to the Canadian Federation of 1867″. It is true that today the French nation of Canada comprises only one province out of 10, but it numbers a quarter of the population of Canada. How can any rational person accept that a resolution by the Canadian Parliament, opposed by a Canadian element as important and as central as Quebec, has achieved that substantial measure of agreement which the Supreme Court considers essential before any request to us to legislate can be regarded as proper?
That is not all. Even more improper is the fact that the judicial decision that would resolve this very question in Canada is being pre-empted by the Government by thrusting the Bill prematurely upon us. We are being asked to judge whether a constitutional measure of the highest importance to the future of Canada is a proper one at the very moment when that question is before a Canadian court. Until the Canadian courts have ruled—if they do—that the present resolution is constitutionally proper without the agreement of Quebec, it would be a grave abuse of our powers, and quite wrong, to give the Bill a Second Reading.
I come to the effect of the Bill on the native peoples of Canada. In response to the point of order raised earlier, I should say that I have made many visits to Canada over the years. They have always been enjoyable and instructive. On one occasion I accepted the hospitality of the Alberta Indians.
Lord Denning’s truly remarkable judgment traced with accuracy and feeling the history of the relationship between the Crown and the Indian nations. The matter upon which he ruled is still the subject of legal process, although, as Mr. Speaker ruled at the beginning of the debate, it is not improper for us to debate this matter simply because of that.
The Indians of Alberta, New Brunswick and Nova Scotia came to our courts to ask whether the treaties signed by their ancestors with the Crown were still in any respect the concern of their sovereign as Queen of England. Although the Court of Appeal has ruled against them, they have since petitioned for leave to appeal to the House of Lords, as is their right. It is improper for us to proceed with the Bill in such circumstances. It may be perfectly legal, but I believe that it is improper.
I agree with the hon. Member for Hackney, Central (Mr. Davis) when he said last week: It cannot be asserted that the legal proceedings are vexatious or frivolous.”—[Official Report, 11 February 1982; Vol. 17, c. 1127.] 316 What then is the Government’s motive for rushing ahead in this way without careful reflection on what they are doing? Is it merely that they wish to preserve their relationship with the present Government of Canada? Of course that is a proper matter for concern, but what of our future relationship with the people of Canada when it becomes known that we have failed to see our duty clearly?
In his judgment Lord Denning accepted that the Indian peoples feel that the assurances given to them in the treaties are in danger of being dishonoured and that their special rights and freedoms will be in danger of being reduced or extinguished. Certainly the Royal Proclamation of 1763 laid down that the native peoples were not to be molested or disturbed in possession of their lands. Lord Denning agreed with the Canadian judges in confirming that the proclamation is, in fact, an Indian Bill of Rights. He described its status as analogous to Magna Carta. The Proclamation also made it clear that the aboriginal nations were distinct peoples, with their own cultures, customs and languages. They are still so today.
Lord Denning went on to remind us of out own traditional attitudes. He said: Our long experience of these matters taught us how to treat the indigenous peoples. As a matter of public policy, it was of the first importance to pay great respect to their laws and customs, and never to interfere with them except when necessary in the interests of peace and good order. It was the responsibilty of the Crown of England—and those representing the Crown—to see that the rights of the indigenous people were not imposed upon by the selfish or the thoughtless or the ruthless. This relationship with indigenous peoples that we have governed all over the world—seen by Edmund Burke and others as being in the nature of a trust—has shaped our present-day attitude to self-determination. I do not have to argue that direct responsibility for the native peoples of Canada is in any way a matter for the British Crown. I accept that it is not. The days of imperial rule are now far behind us. I rest my case on the fact that today we have recognised that there are new but not dissimilar obligations that we have accepted as a member of the international community and which Canada has accepted too.
Mr. Percy Grieve (Solihull) If the Indian rights are not a matter for the Crown, they must be a matter for the Canadian Government. Wherein does the passing of the Bill into law affect the fact that Indian rights must be protected by the Government of Canada?
Sir Bernard Braine That is a proper question to which I shall now turn. As my hon. and learned Friend will know, article 1 of the International Covenant on Civil and Political Rights, to which our two countries adhere, states: All peoples have the right of self determination. A distinguished Canadian jurist, Professor Douglas Sanders, known no doubt to my hon. and learned Friend, has observed that the right of self-determination has not been authoritatively limited to overseas or non-contiguous geographical areas. It is not necessarily linked to the achievement of full independence. Home rule for Greenland, within the State of Denmark, is a realisation of the principle of self-determination. Furthermore, as my hon. and learned Friend will know, article 27 of the covenant states: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, and to profess and practise their own religion, or to use their own language. 317 That right to self-determination is fully recognised by the international community. It is an obligation that rests on us as well as on Canada. The native peoples of Canada demand that they be allowed to maintain their separate identity, which can be done only by safeguarding their rights, particularly their rights to land.
They are not asking us to help them secede from Canada. They would not be in a position to do so. Their communities are scattered around what has already been described as one of the largest countries in the world. There are 600 different Indian bands. Their reserves are tiny islands in vast areas long since ceded to the Crown for settlement of Canadians of European origin. They simply ask that we in this place should play our part to ensure that they are not deprived of their land and are not absorbed into the great white majority, so losing for ever their ancient and diverse cultures. That is the extent of their demand for self-determination, and who among us would say that it is not justified?
What is the Government’s response to their cry for justice; their demand that the Bill should conform to the International Civil and Political Rights Covenant which our own Parliament has ratified?
In introducing the Bill my right hon. Friend the Lord Privy Seal repeated the argument that was contained in the reply to the public petition from Indian chiefs which I had the honour of presenting to the House on 22 January. His view is that there is a convention that we can make no law in respect of Canada save at its request and with its consent. He says that it would not be proper for the House to suggest to the Canadian Government and Parliament how they should care for their native peoples—this is the point that my hon. and learned Friend the Member for Solihull (Mr. Grieve) was making—as this would amount to interference in Canada’s internal affairs.
The Select Committee came to the same conclusion in its first report, but went further. It told us that we should not even deliberate upon Indian rights and interests. This is a complete denial by the Government and the Select Committee that we have any right to exercise our powers as law makers to protect the native peoples of Canada.
Let us consider the implications. It is being asserted that we are tied hand and foot by a convention that we should do nothing to amend the Bill, even though by such washing of our hands our country may be in breach of an international human rights obligation. What sort of convention is that?
I invite the House to consider what the Supreme Court of Canada said about the need for a good reason for any convention or rule. It observed that a string of precedents does not make a rule without a good reason. What good reason is there behind the convention that we should not either discuss or amend the Bill’s provisions? There is, I suggest, none.
Some hon. Members may have read an impressive opinion on the Bill that was prepared only a few days ago by Professor James Fawcett, three times president of the European Commission of Human Rights, who is without doubt the most eminent British jurist in this sphere. He holds that our Parliament cannot treat the enactment of the Bill as only a procedural or constitutional formality. He gives three reasons. The first is that judicial and administrative protection of human rights, and recognition of the principle of self-determination, have come close to 318 a constitutional convention in British practice since 1960, that many independence constitutions that we have enacted have included Bills of Rights in one form or another, and that, while what is proposed in this Bill is different from the forms of other independence legislation, the function of the British Parliament is essentially the same.
The second reason is that, although the Court of Appeal ruled that Indian rights were the responsibility of the Crown of Canada, this did not mean—nor did the courts say that it did—that the British Parliament has no responsibility to secure observance of those rights. It has a statutory duty to perform since we are enacting a Bill that deals with those rights.
The third reason is that our Parliament cannot dispose of the problem by saying that these are internal affairs for Canada and outside our control, since it has the exclusive right to enact a constitution for Canada, and the very reason for us having that unique power, which is an exception in Commonwealth practice, is to secure an independent resolution of possible internal conflicts in Canadian affairs.
Professor Fawcett concludes that our Parliament has an international obligation under the covenant, and a constitutional responsibility, to examine the Bill and to make any changes in it that are called for by this obligation or by a fair regard for the rights of the Indian nations. I submit that the views of that eminent lawyer cannot be ignored. We have no choice in honour but to give precedence to the convention that we should protect human rights wherever these are threatened. We have the power to do so under the Bill.
Some hon. Members may have the impression—this is clear from what we have heard already—that when Prime Minister Trudeau reached accord with seven of the eight dissenting provinces last November that was a reasonable conclusion to an unhappy and long drawn-out dispute. But how was that accord reached? We have not been told. How did the Prime Minister succeed in securing the support of all the dissenting provinces save Quebec after so long a dispute? Clearly a price was paid, but what was the price? The Indian nations believe that the price involved their land rights, upon which their future existence depends. That is a serious charge to make.
Consider for a moment the chequered history of what now appears as clause 35, which purports to entrench native rights. First, it was dropped altogether at the insistence of provincial Premiers. The Attorney-General of Ontario explained clearly why he wanted it eliminated in a private letter to the Federal Minister of Justice, which somehow found its way into theToronto Globe and Mail on 19 November last year. He said that if the clause was not dropped from the resolution, and if at a future date it was the overwhelming will of the Canadian Parliament that certain lands subject to aboriginal title should be expropriated in the public interest…this could not be done. It is obvious that some provinces were insisting that native title should be capable of extinguishment if that was considered a requirement of public policy. As a result, the clause was dropped—only to be revived because of a great public outcry within Canada.
When the vital clause reappeared, the word “existing” was introduced to qualify native rights. The Canadian Justice Minister told the Federal Parliament not to worry about that word because it did not change the substance of 319 what was previously proposed. So why was it included as part and parcel of the deal made last November to bring the seven dissenting provinces into line? The truth is that the insertion of the word “existing” was the final compromise reached to secure accord.
The Bill not only limits native rights in that way, but contains the mechanism to extinguish those that survive. The amending formula enables the Federal Government, with the agreement of seven out of 10 provinces, to eliminate each and every provision protecting the native peoples of Canada. Native consent is not a requirement of the amending formula. It must become so if this House wishes, with a clear conscience, to pass the Bill.
Lord Denning has given us clear guidance. In the concluding words of his judgment he said that the rights and freedoms of the native peoples of Canada are guaranteed to them by the Crown, originally by the Crown in the United Kingdom…now by the Crown in respect of Canada. No Parliament should do anything to lessen the worth of these guarantees. They should be honoured by the Crown in respect of Canada so long as the sun rises and the river flows. That promise must never be broken. A great judge is showing where the path of duty and honour lies for us today in this House.
The Bill in unconstitutional in its effect on one of the two founder nations of the Canadian federation. It is immoral in its effect on the native peoples of Canada. It flies in the face of the concern that this House has always felt, thank God, for minorities. We should not pass the Bill in its present form.
5. 43 pm
Mr. J. Enoch Powell (Down, South) This is not, in the ordinary sense of the term, a Government Bill. Despite being presented by a Minister and backed by the names that appear upon it, it is not a Bill for the contents of which any responsibility can be taken by the Government of the United Kingdom, or which in any way involves the confidence and authority of that Government. From the moment that the Government put into legislative form and placed before the House the request that had been received from the Canadian Parliament, it was discharged from its task. From that moment onwards the question became one for Parliament and, more specifically, for the House. Insofar as the Government are involved in it, they are involved as an integral part of Parliament and of this House.
When, 50 years ago, by the Statute of Westminster, Parliament made an all but comprehensive renunciation of the possibility of legislating for the self-governing Dominions, it did not alter anything—even at that time. It merely recognised a constitutional and political impossibility that had long existed. There was one qualification, which is the occasion of our being here today, of that renunciation: it was qualified and limited for one of the self-governing new nations—namely, Canada. But that was a limitation that could continue only as long as it was the will of the Canadian Parliament that it should. From the moment that will is withdrawn, the power of the House—legal, moral or political—to legislate for Canada automatically ceases.
There was no reason for us in this House to be surprised or dismayed, or to do other than comply with alacrity, when we received an intimation from Canada that it no longer wished that qualification of the renunciation of our legislative power to stand. But a most remarkable thing then happened. In the very moment that we were 320 stretching out our hand formally to transfer what we no longer possessed in reality, the right to legislate for Canada, to that to which alone it could be transferred—the Canadian Parliament—our ears were assailed by a cry of, “Stop, not yet—not for one instant yet. Before you acknowledge that the Parliament of the United Kingdom has no legislative authority, nor can or should have any authority, in Canada, you must enact a new constitutional code.”
There is a saying that authority deserts a dying king; but this king has been long, long dead. At the moment when the inconceivability of our existing legislative authority in Canada is, at the request of the Canadians themselves, to be recognised, it is an intolerable paradox and absurdity that we should be told to hold our hand—albeit only for an instant—so that we may enact a full constitutional code for Canada. It is so striking a paradox, one that assaults so violently our natural sense of what is reasonable and proper, that we must endeavour to understand why this extraordinary request lies before us.
When legislative power passes from this House, as it did formally for all but Canada through the Statute of Westminster, it does not evaporate into thin air. It remains unimpaired, but only migrates, when, in modern phrase, it is patriated. It does not cease, this plenitude of legislative authority vested in the Crown and Parliament of the United Kingdom. It is not destroyed, but is transferred and comes to rest elsewhere. It follows, therefore, that the Parliament of Canada is fully capable, once the limitation in the 1931 statute is removed, of enacting anything and everything that it now asks this House to enact. It must follow also that whatever the House enacts in these last few moments, with these last dregs, of its no longer existent legislative authority, the Parliament of Canada has the unfettered right to repeal, alter and amend in any way whatsoever.
What, therefore, can be the meaning of the contradictory request which has reached us from our fellow Parliament and from our fellow nation? There lies behind it a profound misunderstanding, which it is our duty in this House to resolve, a duty that we owe not only to ourselves but to those from whom this request has been received.
There lies behind this paradox the notion that somehow a code or a fundamental law can he entrenched if it is enacted by this Parliament; that somehow this Parliament can do what the Canadian Parliament cannot do. The Canadians are really groping for some means of endowing themselves with an entrenched constitution, which will be beyond the reach of a sovereign Parliament—an entrenched constitution in the sense in which entrenched law is unknown to our constitution, and, indeed, is unknowable under a sovereign Parliament.
The Canadians want to have an entrenched constitution; in fact, they want to entrench the particular constitution that is set out upon the face of the Bill. They cannot do that for a fundamental reason. A sovereign Parliament cannot create, except in its own image. It is impossible for this sovereign Parliament to transfer to any recipient less than the plenitude of sovereign power that it possesses itself.
We have never sought to do that. We have never laboured under the delusion that we could do it. In earlier times when we complied—before and since 1931—with requests from Canada, we did not comply at the very moment at which we were renouncing and transferring our 321 sovereign legislative power. There are no means whereby we can create and fashion an Act of Parliament such that a body in our own image cannot alter, amend or abolish that Act. It is inconceivable that we, a sovereign Parliament, could create the constitution of a non sovereign Parliament. This country and its Parliament have not been in the business of setting up non-sovereign States. Indeed, it would have been impossible for us to engage in such a business.
Of course, there is a special reason why this unattainable aim is being pursued and sought by Canada. Canada is a federal State, and a stable federal State is incompatible with a sovereign Parliament. A stable federal State implies the existence of a fundamental constitutional law, fixing the functions, rights and existence of the component parts. That fundamental constitutional law cannot subsist together with a sovereign Parliament. Undoubtedly, the fact that Canada is a federal State has fuelled and strengthened the desire of the Canadians somehow to find the means of presenting themselves with an entrenched constitution—with a constitutional document beyond the reach of a sovereign Parliament, even their own Parliament. And here is a corollary—but only a corollary—to the central principle that a sovereign Parliament can create only sovereign Parliaments—that is, that it is not in a sovereign Parliament’s power to create permanently and unchangeably federal States.
So there is a limit—although a limit that we would not wish otherwise—to what we can bestow upon the new nations that have sprung from our own. We cannot endow them with fundamental constitutions nor with fundamentally unchangeable federal constitutions.
The Canadians are entitled to ask “Since you are unable to do this for us—since the appearance of doing it turns out, on examination, to be a mere absurdity and contradiction—how can we fulfil our purpose? How can we give ourselves an entrenched, fundamental federal constitution?” The answer is “You alone can do it for yourselves. You alone can do it by entering into an internal compact, so binding that the very existence of the Canadian State is understood to rest on the maintenance of that contract. In other words, you must start again and create a new State upon the basis of contract, upon the basis of the will that that contract should be made and observed. You must create a contract similar to that upon which your neighbour nation, the United States of America, rests its constitution, which has no knowledge of a sovereign Parliament. It is impossible for this House to do that for you. Indeed, you cannot do it unless you cut the umbilical cord that still links your parliamentary institutions to this House and this Parliament.”
That is the price that Canada must pay for giving itself—in the full sense—its own constitution. It must make it itself and must do so by its own compact. It must enact it itself upon the basis of that contract. We shall deceive Canada and dishonour and degrade its purpose if we purport to do for Canada what we cannot do. It is part of the duty of the House to understand and to point out to Canada that these are the only conditions upon which Canada can fulfil its wish.
So we should assent to all that it is in our power to do. We should complete the 1931 renunciation of our legislative power and should declare, as fully as we then did in respect of every other nation, Parliament’s future 322 incapacity to legislate for Canada. Having done that, we should stop there. The rest is not for us and cannot be for us, and it would be a mockery if we attempted it. The rest, as it lies in the hands of the Canadians, so it must be done by the Canadians among themselves and for themselves.
However, the Bill is in front of us. I hope that we shall not give it a Second Reading, though I hope we shall give a Second Reading to a Bill which completes the work set in hand by the Statute of Westminster. However, if this Bill receives a Second Reading tonight, the House will be proceeding to legislate—on its own authority, because that is what it has been told to do, and on its own responsibility, for that is what it has been asked to do. So we shall have to mean whatever we allow to be placed, even momentarily, on the statute book of the United Kingdom. It will be our business to ensure that we, as a Parliament and House of Commons, assent on our own judgment to what is placed before us.
However, that aspect will arise later. Meanwhile, I hope that this House and Parliament will draw back from an action which is at once contradictory and derogatory, and that thereby we will do what is in our power to assist our fellow nation in Canada to provide itself, in the only way it can, with the fundamental constitution, the entrenched federal constitution, which is evidently its desire.
6. 2 pm
Sir Ian Gilmour (Chesham and Amersham) I agree with the right hon. Member for Down, South (Mr. Powell) when he says that there is an element of paradox in what we seek to do today. He made a most powerful argument, although I fundamentally disagree with his conclusion. I agree with the right hon. Member for Cardiff, South-East (Mr. Callaghan) that it would be an intolerable affront to the Canadian Government if we did not pass the Bill.
The Imperial Conference of 1926 laid down that so far as Britain and the Dominions are concerned, equality of status is the root principle governing inter-imperial relations. That has been the position since 1926 and was certainly so long before that. It is not affected because Canada is a federation.
Because of the untrammelled legal powers of this Parliament, there was thought to be some difficulty when the Statute of Westminster was being drafted about achieving that position legally as opposed to inreality. The supposed difficulty stemmed from the well-known fact that Parliament cannot bind its successors and, merely to repeal the Colonial Laws Validity Act, would not necessarily have met the case.
Therefore, the position was dealt with by paragraph 3 of the preamble to the Statute of Westminster, which dealt with the convention, and section 4 of the statute, which dealt with the law. That double-barrelled approach was thought necessary to achieve the equality of status. My right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) seemed to pay more attention to the constitutional conventions of Canada than to those of this Parliament, which most immediately affect us.
There are two principles or facts which govern Canadian and United Kingdom relations. The first is equality of status, and the second is that both are independent countries. As one would expect, in the case of an independent country, this Parliament cannot legislate for Canada 323otherwise than at the request and with the consent of Canada, My hon. Friend the Member for Essex, South-East (Sir B. Braine) doubted the presence of that convention. He should read the Statute of Westminster about which, as the right hon. Member for Down, South said, there was nothing new. It merely rightly consecrated the position that had existed for a long time.
That is the essential background and foreground to the Bill.
Canada is an independent country whose Parliament and Government are responsible to the Canadian electorate. We in Britain are responsible to the British, not the Canadian, electorate. My hon. Friend the Member for Essex, South-East rather neglected that important aspect. With respect to him and to the right hon. and hon. Members who tabled the amendment, it too, neglects that very important aspect.
Of course, all hon. Members are entitled to say what they wish about anything and do. They can express their opinions on Canada and anything else. However, this House has no more right to alter the Canadian constitution, except at the request of the Canadian Government, or to demand an alteration, than it has to demand an alteration of the constitution of the United States or any other country. If we followed the advice of my hon. Friend the Member for Essex, South-East we should be interfering in Canada’s affairs—the affairs of an independent country. We should be behaving as if we were still the colonial power which we no longer are. Therefore, we cannot behave in a colonialist fashion.
Canada’s politics are not our business. We have no more right to interfere in the internal affairs of Canada than Mr. Trudeau has to interfere in the internal affairs of South-East Essex, Brixton, Toxteth, Walsall, Epping Forest or anywhere else. That is the basic argument and, in my view, the reason why the Bill should be passed quickly.
Sir Bernard Braine This is a matter not for flippancy but for serious consideration. I quoted the Supreme Court of Canada and the Master of the Rolls as part authority for my remarks. There is no doubt that this House has the right to amend or alter any Bill. It is not the case, as my right hon. Friend suggests, that we should do nothing of the sort and simply pass this legislation without demur.
Sir Ian Gilmour My hon. Friend really cannot cite the Master of the Rolls for that proposition. There is nothing in his judgment that justifies that. The Master of the Rolls would be horrified if we broke the Statute of Westminster or the convention. He certainly did not say anything to the effect that my hon. Friend claims.
Not to accede to the Canadian request and give Canada something that it as not requested—as the right hon. Member for Down, South suggested—would breach the convention. As I understood it, he said that we should enact not this package, but we might enact another.
Mr. J. Enoch Powell Give them everything.
Sir Ian Gilmour The right hon. Gentleman said that we should not go ahead with the Bill.
Mr. Powell I contend that we should renounce our right to legislate for Canada.
Sir Ian Gilmour The right hon. Gentleman says that we should not enact the Bill, as I said. Again, that would be a breach of the convention in the Statute of 324 Westminster. The Foreign Affairs Committee has done us all a great service by setting out the issues and giving its views in such a clear-cut way.
The first of its three reports states that it would be unconstitutional for the United Kingdom. Parliament, if requested to patriate the British North America Acts along with a new Charter of Rights, to enact only part of the requested package…Such a course of action would amount to legislating for Canada without its request and consent. A partial package is a new package. I believe that statement to be right.
I think it is fair to say that if, on any other issue, this House sought not to do what the Canadian Government wanted, Quebec would be the first province to complain. There would be loud shouts of neo-colonialism and how intolerable the English were to interfere in Canadian affairs.
Secondly, the issue of the Quebec opposition is not as clear-cut as it seems. It is true that the Quebec Assembly voted by 70 to 38 against the package, but in the Federal Parliament 71 out of the 75 Members representing Quebec supported the proposals.
Thirdly, the Supreme Court recently considered the matter. One of the appeals was from Quebec itself. Had the court considered that Quebec had a veto, or that unanimity was necessary, presumably it would have said so, but all that it said was that there should be at least a substantial measure of provincial consent”. According to the third report of the Foreign Affairs Committee, the court went on to say: It will be for the political actors, not this Court, to determine the degree of provincial consent required. That deals with many of the points made by my right hon. and learned Friend the Member for Hertfordshire, East.
Canada is a sovereign, independent country. Rightly, the United Kingdom has no control over it and no right to meddle in its affairs. This Parliament is not an old-fashioned House of Lords to a Canadian House of Commons, with the right to pick and choose the Canadian legislation that it likes.
The constitutional position is clear. This Parliament legislates for Canada only at the request and with the consent of Canada. We are asked by the Canadian Government, with the concurrence of nine out of 10 provinces, to enact the constitution. That is what we should do as soon as possible.
6. 11 pm
Mr. Kevin McNamara (Kingston upon Hull, Central) In deference to the hon. Member for Tiverton (Mr. Maxwell-Hyslop), I declare the hospitaity that I have received from organisations and institutions in the federation of Canada. I have had two meals at the High Commission, one at Simpsons, lunch with the Secretary-Agent for Quebec, three days in Quebec as a guest of the Quebec Government, one meal from Nova Scotia and a Christmas card from Saskatchewan. I was privileged to visit Canada at an historic time, the constitutional conference, in company with my hon. Friend the Member for South Ayrshire (Mr. Foulkes).
Let me put one or two things straight about the Select Committee’s work. They are important in view of the way that the Government are dealing with the Bill. I asked my colleagues on the Committee to examine the role of the British Parliament in relation to any changes in the constitution of Canada that it might be invited to pass not because I felt that this Parliament had a right to nit-pick 325 about what Canada wanted or did not want for its citizens—that is a matter for Canada, and we cannot properly intervene—but because we had a right and a duty to protest when it appeared that the Canadian Government sought to rubber stamp proposals through this Parliament which they could not get through their own Parliament and provinces under their own procedures. Instead of the British Parliament intervening in Canadian internal affairs, the Canadian Government sought to use our procedures to legitimise what they could not get through in their own country. That was an abuse of their position.
One of the first leaked documents on the matter to go before the Canadian Government was headed “For Ministers’ eyes only”, which gave the clear impression that, should any of the resolutions going through the Canadian Parliament be challenged in the courts of Canada—the appeal courts in the provinces or the Supreme Court—it would not matter. By the time that the appeal had been heard, the issue would have been resolved in this Parliament. The Canadian courts would have been presented with a fait accompli. That is a denial of the rule of law and of the procedures that should be followed.
When the Lord Privy Seal mentioned the proceedings before our courts, I intervened. The principle still applies in relation to the Indian matter before the House of Lords and to the issue before the appeal court in Quebec, which will doubtless go to the Supreme Court of Canada.
I believe that the House of Lords will come down strongly, firmly and directly in the same way as the Court of Appeal, but I do not know. The right hon. Member for Chesham and Amersham (Sir I. Gilmour) read out part of the decision of the Supreme Court of Canada, which was to the effect that what amounts to reasonable provincial understanding will depend on the decision of the political actors. If nine of the 10 provinces have acceded to the proposition, Quebec’s fate will have been decided. But, equally, I do not know.
We should have respect for proper constitutional practice. Therefore, we should wait, first, for the House of Lords to decide the Indian case. Once the House of Lords says, as I believe that it will, that any rights, duties or responsibilities that we had for the Indian and aboriginal people were extinguished, at the latest, by the Statute of Westminster, further appeals from Indian bands or federations will be considered frivolous and vexatious. The House would then be entitled to proceed on the question of the Indians. Secondly, I have stated what I believe the courts in Canada will decide about Quebec, but if I am wrong we must go back to Canada and have a new package.
It is worth the Canadians waiting about a year to decide for two reasons. First, there is the duty to the people and the province of Quebec for their role in the history of Canada. For the interest of the House and the hon. Member for Tiverton, I state that my parents lived there for many years and my elder brother was born there and lived there. I am not sure whether I was the result of a sad farewell or a happy reunion, but I have a long and happy family interest in Quebec. I have relatives there and throughout the rest of Canada.
More importantly, we have a political responsibility not to leave a grievance in Quebec which can be used continuously against this House and the Federal Government—that the king that the province felt that it 326 had in its hand was trumped by the British Parliament’s ace. That responsibility was exactly what the Select Committee considered.
There is an historic compromise. My hon. Friend the Member for South Ayrshire and I wore the badge of the Quebec delegation and, although we were not members, we were allowed to attend the important constitutional conference. At the beginning, historic gestures were made. Quebec agreed to give up its historic veto in return for the agreement with which the provincial Prime Ministers went into the conference. But what emerged was an entirely different package from that which had been on offer when Quebec was prepared to give up its veto. Quebec could therefore regain its veto. I do not think, therefore, that that argument can be thrown at Quebec on this occasion. Having said that, Quebec loses a lot of sympathy here and elsewhere because of what is regarded in many places and on many occasions as the harsh enforcement of Bill 101.
If we, as a Committee and as a House, say that it is wrong to go behind the backs of the courts, that it is wrong to give people who believe they have a grievance no opportunity to exhaust all their legal processes, what do we do about it? In my opinion, the Select Committee did something very wise. I pay tribute to the hon. Member for Stroud (Sir A. Kershaw) who as Chairman of the Committee, on a very difficult and complicated matter, helped us to come to what I believe were intelligent and sensible conclusions. I say that as a member of the Committee, but it is an observation made by the Government and by other hon. Members.
We therefore wrote into both the first and third reports specific reference to the aboriginal peoples, which, on the basis of the evidence, we need not have mentioned at all, because, according to the Foreign and Commonwealth Office, all rights and responsibilities with regard to the aboriginal peoples went at the time of the Statute of Westminster, if not before. I believe that the Canadian Government paid attention to what we said in the report about these people having a right to have their grievances discussed.
It is not true to say that the Select Committee did not examine the position of the Indians. When the Foreign Office made its statement, in answer to the Chairman of the Select Committee—and it is there in the evidence—I immediately asked whether this matter had ever been challenged in the English courts, and was told that it had not. It was only at the time of the introduction of this Bill that the Indian nations, for quite understandable reasons, decided to have recourse to the courts. The Select Committee, the Government and the Canadian Government were, therefore, entitled to feel that if, after that long period, there had been no recourse to the courts, the Indian people had at least accepted that position. That is no longer so, because they are going through the courts here.
I believe that we would be wrong indeed to seek to amend this constitutional Bill in any way, because we would be interfering in the internal affairs of Canada and it would mean a new package. We are right, however, to expect that the legal processes should be exhausted. I would not, therefore, agree with the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) that we should not proceed to vote on the Bill. We have it before us. We cannot deny it a Second Reading. 327 What would, however, be in the long-term interests of the Federal Government, of this Government, of this country and of Canada would be, when the Bill has been read a Second time, to wait until the legal processes have been exhausted. We have shown our good will, ability, willingness and concern for the people of Canada in being prepared to accept their wishes, but even greater than their wishes are the legal processes on which both of our countries depend and the importance of their being followed. That is the way out of the embarrassing situation in which the Government now find themselves.
I urge the House not to nit-pick on the Charter of Rights and take exception to the possibility of there not being a closed shop or of taking away the freedom of property or whatever is contained in that charter. That is not our concern. It never was. It is the concern of the Canadian people. If we give the Bill a Second Reading and wait to resolve the problems, instead of coining back in Committee, as I understand it, next week, we shall be doing a greater favour to Canada if we wait for the courts’ decision.
We would be able to convey this legislative power to Canada with dignity, devotion and respect, rather than have a great moment in the history of two great nations ruined by a squalid argument, because, important though the issues in these arguments are, the procedures, the methods and the filibustering will make what should be a great charter and a great occasion for the Canadian people something demeaning to this Parliament and to the people of both countries.
6. 26 pm
Sir Anthony Kershaw (Stroud) I am very glad to follow the hon. Member for Kingston upon Hull, Central (Mr. McNamara), because he has contributed in a very remarkable way to the deliberations of the Select Committee and his advice and initiatives have been most valuable. While I do not entirely agree with his conclusions this evening, this report of the Select Committee would not be nearly as good if he had not been a member of the Committee. I am sorry that, because of promotion to the Front Bench, we have lost him, at any rate for the time being.
When, in the autumn of 1980, it became known that the Canadian Government intended to send a request to this Parliament which would effectively remove the power of amendment of the Canadian constitution to Canada, where most of us think it ought long to have been, we in the Select Committee thought that it might be of some service to the House if we were to study the matter. As requests from Canada are not very frequent, we wondered whether all right hon. and learned Members would have the matter entirely at their fingertips.
We also had it in mind that many members of our public and of the Canadian public might think it curious and even humiliating that a great country like Canada, independent for years, even for generations, should have to come to the legislature of another country to validate its laws. If we could explain how this situation came about, it might serve to reduce any spontaneous resentment which could arise in Canada.
It was indeed already clear that such resentment was being felt, because Prime Minister Trudeau started his campaign to patriate the constitution at what I can only 328 describe as”a fair old gallop” so that already, before we knew the nature of the request, we were being told that, whatever the request, we must grant it unseen, holding, as the Canadian Minister in a notable phrase remarked, our noses as we did so”. We decided to devote our attention only to the British role. We thought it wholly inappropriate to consider in any way whether the measures which Canada was to propose were good, bad or indifferent as far as Canada’s welfare was concerned. We regarded this as none of our business. Canada is and has long been, even before the Statute of Westminster 1931, a wholly sovereign State, and only Canada can judge the usefulness of its own laws. Furthermore, none of us here has been elected by Canadian voters. We are not answerable to them and we are not entitled to put upon them any burdens or to regulate their lives in any way whatever. Even to comment in the way some have thought fit to comment tonight on the suitability for Canada of the request seems to me to be out of place.
What we are entitled to do—indeed, what it is our duty to do—is to check whether the making of the request is done in the proper form which law and convention demand. We therefore invited only British witnesses to appear before the Committee. We invited my hon. Friend the Member for Cirencester and Tewkesbury (Mr. Ridley), the Minister then responsible, who was accompanied by his legal advisers and officials of the Foreign and Commonwealth Office. We also invited Dr. Geoffrey Marshall, lecturer in politics at Oxford university and Fellow of Queen’s; Professor H. W. R. Wade QC, professor of English law at Cambridge university and Master of Gonville and Caius; and Mr. E. Lauterpacht QC, lecturer in law at Cambridge and Fellow of Trinity. As specialist adviser we appoited Dr. John Finnis, reader in the laws of the British Commonwealth and the United States and Fellow of University college, Oxford, to whom I pay tribute for his invaluable advice.
I mention those names to call attention to the quality of the advice that we received, and because at one stage in the process a Canadian Minister asserted that our advice was poor and even called into question the integrity of our advisers—a charge that was wholly unjustified and which sounded bizarre at the level of international discussion that we were at.
In addition to those oral witnesses, we received a mass of written evidence, mostly from Canada. We became aware of the Canadian Government’s position through various public documents, among them the Federal Government’s case before the Court of Manitoba. The Canadian Government did not deal in any way direct with us, which was certainly diplomatically correct, but I pay tribute to the personal help and kindness which we received from the Canadian high commission in London and especially from the high commissioner herself, whom we in turn sought to keep informed at all times.
The main question to decide was whether the only criterion for judgment was the law as written in the British North America Acts or whether there were also conventions which had to be borne in mind in applying that law. We looked first at the circumstances surrounding the making of the Statute of Westminster in 1931, which made Canada in law what she had been for many years in fact—a fully independent country.
We found that the reason for leaving the amending powers in the United Kingdom was that under the 1867 329 constitution Canada was a federation with constitutional rights divided between the central and provincial Governments, and that agreement had not been reached on how to alter their respective rights. For the time being, therefore, the amending powers were left in London, but it was always envisaged that agreement would be reached between the central and provincial Governments, and that amending powers would be taken to Canada. There were repeated efforts, but agreement was not reached, so here we are today.
British Governments have never relished that position. Indeed, in 1943, after a difficult passage between Ottawa and Quebec, the British high commissioner wrote to the Canadian Government saying that the system was sure to lead to difficulty in the future and should be ended as soon as possible after the war.
The reason for leaving the amending powers here was that Canada was a federation. We therefore concluded that if a proposal were made to us which, in the opinion of a substantial number of Canadians, diminished the federal nature of the constitution we should hesitate to carry it out. I do not regard this House as being obliged to insist that federalism should always be preserved in Canada; nor do I think that this House is the champion of the provinces or indeed of the Federal Government. I think that our role is to uphold the federal nature of the Canadian constitution—the reason why we were given that role—until we are asked by a substantial and convincing majority of Canadians to change it.
The Select Committee also examined the 20 or so occasions on which the constitution of 1867 had been amended by this Parliament. We found that in every case, with a possible exception in 1907, which my right hon. Friend the Lord Privy Seal mentioned, when the late Sir Winston Churchill was Under-Secretary of State for the Colonies, there had been Canadian consent. This had led many to believe, and the Canadian Government to say, that our consent must be automatic, that we must be a rubber stamp. In some cases there had been opposition, but in those cases the rights and privileges of the provinces had not been at stake.
What such people had overlooked, or wished to hide, was that there was absolutely no precedent for this House passing an amendment affecting the rights and privileges of the provinces to which a large number of Canadians and a large number of provinces were opposed. It emerged that there was indeed substantial opposition to the request as known, and in the end no fewer than eight provinces were against it.
I was perfectly clear after hearing the evidence that the destruction, or indeed the alteration, of the federal nature of the Canadian constitution was something that we could not agree to unless the Canadians asked us to do so. But it was difficult to decide how we were to judge whether Canadians were or were not in favour of the change. First, we must consider the voices of the provinces. Was one enough? Does everyone have a veto? We found no evidence that unanimity of the provinces was essential. Indeed, we could go further. Even if the Government of a province were against, the opinion of the people, expressed in a referendum or in some other way, could be taken note of. However, in our opinion, we were saved 330 from having to make a too difficult judgment. By the time eight provinces were against, it was clear that eight were too many.
During these months of debate the Canadian Government were maintaining that the law was clear and that no conventions could limit it. That is true in a way. The only law that the courts can administer is what is in the law books, but when because of growing opposition, not least in this House, Mr. Trudeau put the matter to the Supreme Court of Canada the court was perfectly clear that constitutional conventions plus constitutional law equal the total Constitution of the country”. It seems clear to me, therefore, that a request which violates a convention is an improper request and that we should have been right to reject the request as originally foreshadowed.
The request before us today is different and has secured the support of nine of the 10 provinces. I suggest that just as eight against were too many, nine for are enough.
It is indeed a pity that the dissenting province should be Quebec, a founder province and a distinctive province, because of its Frenchness. Nevertheless, there is no veto binding upon this House which precludes us from deciding that the present request in fact represents the general will of Canada regarded as a federally structured whole. I suggest, therefore, that we are not only constitutionally able, but are constitutionally obliged, by law and convention, to pass the Bill.
What we cannot do is to amend the Bill. We can pass it or reject it, but to amend it is to do something that Canada has not asked us to do. Both the preamble to the Statute of Westminster and the conventions of the constitution join in saying that it is not for this House to legislate for a fully independent country against its will.
In regard to the representations of the Indian and other peoples, the Select Committee had the advantage of a large amount of written material from them. If we did not deal at any great length with their problems in our report, that is only because we were so clear in our minds that all their treaties were with the Crown of Canada. When those treaties were signed the Crown was undivided. When Canada became independent the Crown became divided as between the United Kingdom and Canada. There can be no doubt about that. I associate myself entirely with the expressions of friendship for and sympathy that we have heard today towards the Indian and other aboriginal peoples of Canada, but I have no doubt what the true constitutional position is.
Finally, I believe that Her Majesty’s Government were right to proceed with the Bill, even if some court proceedings are still pending. It was surely correct to wait for the verdict of the Supreme Court of Canada, as a matter of good sense. Indeed, that verdict had a decisive effect upon the course of events. But in our system this sovereign House will not be bound by those court decisions. Further, it is the convention that we use all reasonable dispatch in dealing with a proper Canadian request once received. That has been the practice of Parliament, as repeatedly stated by Ministers in the House.
It has been well said today that for political reasons it would be wrong not to pass the Bill. I agree. I also say that we should pass the Bill for sound constitutional reasons as well.
6. 40 pm
Mr. Douglas Jay (Battersea, North) I note that in the opinion of the hon. Member for Stroud (Sir A. Kershaw) the Select Committee had the right to reject the original request from Canada. That in itself might have been regarded by some people as interfering in the internal affairs of Canada. Nothing that I have heard so far this afternoon has altered the conviction which I held before the debate began that the Government have gratuitously complicated the issue by rushing in with the Second Reading of the Bill while the courts both in this country and in Canada are involved in judging some of the issues.
When the constitutional arrangements have lasted, with minor changes, for over 100 years, and when this controversy has been going on for several years, surely the Government could have waited another few weeks to let the courts give their opinion. The Minister suggested that there was a risk that we might have a continuous series of vexatious proceedings in the courts which would have been a sort of constitutional filibuster. In theory that might occur; but it has not begun yet in anybody’s opinion. It is a pity that we are being pushed ahead as hastily as we are.
Our predominant aim in this controversy, I believe, should be to avoid any breach or worsening of relations between this country and Canada. There are enough international quarrels going on in the world without our starting another unnecessary one between the United Kingdom and Canada. There is in any case no dispute that Canada is an independent sovereign country in the full sense of the word. Therefore, it would be wrong for the House to reject the Bill either tonight or at any of its subsequent stages.
For that reason, ought we to disregard entirely the approaches which have been made to hon. Members in recent weeks by the Indian peoples of Canada, which have really been approaches to the British Parliament? I am not convinced that we should disregard entirely those approaches. In a broader sense the historical record of the European peoples in North, Central or South America has not been so good over generations that there are not quite a few wrongs waiting to be redressed. I sometimes wish that United States’ politicians would devote more attention to the conditions of the Indians in their country than talk nonsense about Ireland, as some of them at times do. Nor do I believe that we should ignore the fact that Indian representatives have come to London to put their case before the British courts and the British Parliament.
In the few minutes available I shall not follow the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) into all the complicated legal and constitutional issues. Indeed, I am not qualified to do so. There are, however, some things which are tolerably clear. There are approximately 1 million Indians living in Canada. Not all but some of them are covered by the original treaties. There was a Royal Proclamation of 1763, and a number of treaties were signed with the British Crown. The Statute of Westminster, although it may have transferred the responsibility for those rights, has not extinguished the original rights. Indeed, the very fact that Canada is asking us to pass the Bill shows that the United Kingdom Parliament still has some residual powers and responsibilities. If we have not, there is no need for the Bill. In addition, we now have it on the authority of Mr. Speaker that it is possible to amend the Bill.
332 It can, of course, still be said, as Lord Denning said in his judgment, that the Bill itself contains express safeguards and conditions for Indian rights, notably in clauses 35 and 37. But the representatives of the Indians do not regard those rights as adequate or wholly reliable, particularly in regard to their titles to land. On the evidence available, it seems to me that they have justification for that anxiety.
Their anxiety is a political fact. I agree with my right hon. Friend the Member for Cardiff, South-East (Mr. Callaghan) that we are concerned with political realities as well as with the proper conduct of the law. It would surely be far better, if possible, and far happier both for the United Kingdom and the Canadian Parliaments, if a substantial measure of consent, which seems to be the ruling phrase, could be obtained with the Indians, as well as with the provinces, for the whole settlement and if no serious grievance were left.
Although I agree that we must in no way interfere or appear to interfere in the internal affairs of Canada, and although I do not myself presume to pronounce on the precise legal and constitutional rights and wrongs, several firm conclusions seem to be warranted at this stage of the debate.
First, whatever our legal powers, the British Government certainly have the right to invite the Canadian Government of their own free will to agree to adjustments or changes, or at least to give further assurances, which would allay the anxieties of the Indian peoples. Secondly, there is surely a sufficient moral and historical case, and sufficient legal doubt, to make it highly desirable that the Indian case should be stated fully and debated fully in the discussions of the Bill by the. British Parliament. Thirdly, in spite of all that has been said in this debate so far, I am still far from convinced that proceedings on the Bill ought to go forward while some of the relevant issues are still before the courts both in this country and in Canada.
6. 48 pm
Sir Angus Maude (Stratford-on-Avon) Because many hon. Members want to speak, I shall try not to detain the House very long. I am sorry that my hon. Friend the Member for Stroud (Sir A. Kershaw) is not in the House. because I wanted to address myself to one or two points in his speech. I should like to get some matters out of the way before I come to the main reason for my disquiet about the Bill.
Although obviously we must respect Mr. Speaker’s opinion, which he expressed at the beginning of the debate, I cannot feel that the Bill is amendable. If the convention is right—that we can legislate only on the proposal or at the request of the Canadian Parliament—it must be true that we cannot insert into any measure bits which we have thought up ourselves and which the Canadian Parliament has not proposed to us. Therefore, it seems that additions to the Bill would be constitutionally improper.
As for the implication of the right hon. Member for. Down, South (Mr. Powell), that one might nevertheless leave out parts of the Bill, that is a point, as P. G. Wodehouse once said, “verging on the moot”. I do not wish to go into that, but I strongly suspect that it would also be an improper procedure. The House must take or reject the Bill as it stands.
Although I have the greatest sympathy for the aspirations and grievances of the aboriginal peoples of 333 Canada, I feel that we must accept the judgment of the learned judges in the Court of Appeal that the responsibility for their rights passed, at least in 1931, from the Crown and Parliament of the United Kingdom to the Crown and Parliament of Canada. I agree with the hon. Member for Kingston upon Hull, Central (Mr. McNamara) that it is extremely unlikely that the judgment will be overturned in another place.
I also agree with my right hon. Friend the Lord Privy Seal that if we delay the legislation until that litigation is out of the way we might open the way to an interminable series of attempts to delay the measure by litigation. That is a reasonable attitude for the Government to take. However, I remind the House that other litigation is proceeding in Canada in respect of the Quebec application. It cannot be said that the same principles apply to that, because it is a limited issue and the timetable, while no doubt subject to delay, is comparatively limited. It can be argued that we should delay a final judgment on the Bill until that process has been completed.
I was grateful to my hon. Friend the Member for Stroud for stating so clearly the matters that influenced the Select Committee in its reports. We all congratulate him on the clarity of those reports. However, he made two rather astonishing comments. First, he said that, although the Quebec appeal was under discussion in the Canadian courts, the House could not be bound by the decisions of those courts. That is a strange and questionable proposition. I hope that the Minister who is to reply to the debate will answer the important question: what happens if the House and Parliament as a whole pass the Bill and the Supreme Court of Canada then finds that the proposal on which our legislation is based is improper and unconstitutional? Will that render the Bill, as enacted, unconstitutional? Apart from making the House look silly, it will cause a considerable problem for the Crown and Parliament of Canada. We must have an answer to that question before we come to a final decision—at least on Second Reading.
Another matter that seemed to be less than logical in the speech of my hon. Friend the Member for Stroud—an illogicality that has appeared in other speeches from those who support the motion—was the suggestion that by convention we must pass any legislation that is proposed to us by the Parliament of Canada. It has been said many times that we can legislate only on the proposal and at the request of the Canadian Parliament. I accept that. It does not follow that we are under an obligation to pass without question every piece of legislation proposed or requested by the Canadian Parliament. That would be carrying the convention too far.
My hon. Friend the Member for Stroud said that the Select Committee came to the conclusion that, since eight out of the 10 provinces were opposed to the proposal of the Federal Government of Canada, it was an improper request to which it could not recommend the House to accede. One cannot say that there are circumstances in which the House should regard a proposal as improper and unconstitutional and therefore reject it, and at the same time say that we are obliged by convention to pass unchanged any legislation that is recommended to us by the Parliament of Canada. Yet that assumption has underlain much of the argument in support of the Bill.
334 My hon. Friend the Member for Stroud asked how many provinces must be in favour and how many against the request of the Canadian Parliament for us to accept it. It is unacceptable for so many hon. Members to say that only one province out of 10 in Canada objects to the Bill, that one in 10 is not very many, and that the overwhelming majority is in favour of the proposal, so we are justified in passing it. In my view, Quebec is not just one of 10 provinces. It constitutes a quarter of the population of Canada and is almost a nation in itself. As other hon. Members have said, it is one of the founder nations of the federation with a culture and a language of its own. Clearly, it is in a different position from the other provinces.
We are entitled to look back at the history of Canada and to the accession of Lower Canada—as Quebec was then called—to the federation in 1867. Any hon. Member who reads the history and the discussions at the time would find it difficult to believe that the people and leaders of Quebec would have acceded to the federation unless they believed that, under the British North America Act 1867, the British Government would secure their rights as a province against the possible encroachments of the Federal Government. They would not have acceded without what they regarded as the strongest and most enduring guarantees from the United Kingdom Government.
Should Quebec have a veto, or does it have a veto? We cannot know or decide that until the Supreme Court has ruled on the matter. My hon. Friend the Member for Thanet, East (Mr. Aitken) said that Quebec had, in effect, renounced its veto. I think that I agree with the comment on that subject that was made by the hon. Member for Kingston upon Hull, Central, because we should bear in mind that the First Minister of Quebec still says—at least, he said at the beginning of this week—that Quebec regarded as threatened what he described as its traditional veto right with regard to fundamental constitutional changes”. So it cannot be argued that Quebec has renounced its veto, because clearly the First Minister believes hat constitutionally Quebec has, or is entitled to, a veto.
For some years I lived in a country that has a federal constitution. I do not need any constitutional expert to tell me that the federal constitution of Australia is very different from that of Canada and, indeed, of many other federations. However, the one thing that is common to all federal constitutions is that the constituent states or provinces consider the question of state rights or provincial rights as against the central Government as a vital matter which has to be defended by every possible entrenchment in the constitution.
There is no doubt that at present Quebec considers not merely that its constitutional rights are at risk, but that the United Kingdom Parliament still has a residual obligation to guarantee those rights, so long as Quebec is not satisfied with the formula proposed.
Quebec is right in saying that the United Kingdom Government originally guaranteed the rights of the provinces as against the Federal Government. I think I am right in saying that the Parti Quebecois would never have entered the federation unless it believed that the United Kingdom had, and would retain until it specifically asked it to abrogate, a duty to protect those rights.
Therefore, I believe that we should not give the Bill a Second Reading as long as the question of the constitutionality of the request and the opposition of 335 Quebec are still open and before the higher courts of Canada. In my view, it would be right for us to wait, not only for the verdict of the Quebec courts, but for what undoubtedly will be an appeal to the Supreme Court of Canada. This, as I have said before and as my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) said, cannot be an indefinitely protracted procedure. It should be carried through within months, rather than years. We have a duty to hold our horses and to go carefully. I therefore tell the Government that I shall not find it possible to vote for the Second Reading of the Bill.
7. 4 pm
Mr. Russell Johnston (Inverness) I am sorry that the hon. Member for Stratford-on-Avon (Sir A. Maude) feels unable to support the Bill. He is right to say that provinces in federal systems attach particular importance to their powers in relation to central Government. It is also fair to say that federal systems are usually a strange mixture of legal rigidity, on the one hand, and of a flexible horse-trading approach to that relationship, on the other. We are at the end of a long process in Canada, and it is the latter political aspect, referred to by a former Prime Minister, the right hon. Member for Cardiff, South-East (Mr. Callaghan), which is dominant, bearing in mind, of course, that several legal hurdles have already been crossed.
We have been assiduously lobbied about this matter. I understand that the Saskatchewan Indians, whom I saw again this morning, have succeeded in seeing 175 individual Members of Parliament. That is a considerable number. The problem with which many of us are wrestling is the extent to which it is proper for us to take into account those representations in determining what we do, not necessarily tonight, but possibly in Committee. For a layman like myself, it is a strange anachronism that we in this House retain the power to amend the constitution of a country which has long been recognised as proudly independent, and one which occupies a significant place and exercises a significant influence in international affairs.
So far as I could understand the somewhat convoluted speech of the right hon. Member for Down, South (Mr. Powell), he said that we should pass a simple one-line Bill saying that we in this Parliament renounce all powers in regard to Canada. That is what I understood him to say. He was not saying, as some hon. Members thought, that we should take bits out of the proposed Bill or put bits in. He was saying that we do not want to have anything to do with the matter at all, and that as in reality we have no powers, we should say so. In the absolute logic in which he deals that may be true in an absolute sense, but politically it is not a viable option. The reality is that we have to look at what has been presented to us.
The Lord Privy Seal, in introducing the Bill, was properly careful not to comment on anything in the Bill. He outlined the history and spoke of the matters that are in contention, which we knew about already. Beyond that, he would not go. Inevitably, however, the debate has been preoccupied with the matters which are in contention. I shall refer to them briefly, but first I want to make three general points.
It is right at this time to pay tribute to the achievement of Prime Minister Trudeau in succeeding in knitting together, in circumstances of great difficulty, a 336 constitutional package, which, as many hon. Members have said, clearly has the overwhelming support of the Canadian people. I do not believe that it would have gone through without his personal commitment. The Liberal Party of Canada is a member of Liberal International, arid my party, because of our regular contacts, has gained some appreciation of the highly emotional and stressful time that Canadians have been through.
Secondly, we all know that Canada faces considerable internal strains, involving not only Quebec, but some of the other provinces. Patriation will not solve the crisis of national unity in Canada, but it will make it possible. I contend that without patriation it is impossible.
Thirdly, I wish to put it officially on the record on behalf of the Liberal Party that we are in complete agreement with the views that have been enunciated by the Front Benches of both the Government and the Opposition that we cannot contemplate instructing, not just the Government, but the Parliament—we should remember that the majority by which the Act was passed was considerable—of a friendly country what its internal policy should be. Nevertheless, as the right hon. Member for Leeds, East (Mr. Healey) said, all Members of Parliament in free countries have concern for freedoms elsewhere and, in general, are not slack to refer to them. It is in that spirit that I shall refer briefly to the position of Quebec and that of the Indians.
The point was well made by the right hon. Member for Chesham and Amersham (Sir Ian Gilmour), the former Lord Privy Seal, that Quebec speaks with two voices. It speaks in its votes in the province by electing the Parti Quebecois, which takes up the view of the province, and at federal level it speaks with another voice, electing 71 out of 75 members, which provides the Trudeau Liberal Government with its majority. Those two views are different views from the same place.
As I said when I intervened in the speech of the right hon. Member for Cardiff, South-East, it is a political reality that it is impossible for the present Parti Quebecois Government of Quebec to take any other view, because of its political stance, and because of its political history and the present position of the party.
I refer to a point made by the right hon. Member for Stratford-on-Avon. If there were a convention requiring Quebec’s consent, it was given up by the Quebec Government when it agreed to the formula based on the equality of the provinces in September 1980. In choosing to oppose and defeat the Federal Government’s proposal that Quebec should have a veto over constitutional amendments, the Quebec Government at that time destroyed any potential argument that was required for constitutional change. It is not logical to invoke an argument which the Quebec Government’s previous actions refuted.
Mr. Marlow The hon. Gentleman said, as others have, that the issue is still contentious in Canada. Given the proper independence of Canada, is it right and proper that we in the House should pass a measure that is contentious in Canada? Should we not wait until we can get something that is agreed in Canada and let the Canadians sort out their contentious issues? Is it not gross interference by the House to pass a measure that is contentious on the other side of the Atlantic?
Mr. Johnston The point has been made by number of hon. Members that there are degrees of contentiousness. 337 The patriation resolution was passed in the House of Commons of Canada by 246 votes to 24. That is a fair sign of support. I know that the hon. Gentleman is contentious by nature and that he will probably always be so.
The position of the aboriginal peoples in Canada is more difficult. The nub of their case is that patriation will transfer their rights to the Canadian Government, so that whatever may now be said to be the case, those rights will no longer be entrenched as at present. Therefore, those rights could be changed or removed by the Canadian Government.
The Saskatchewan Indians, whom many hon. Members have seen, have produced a document, dated 9 February. I shall give a taste of what it says: What will happen to Indian rights if the Canada Bill passes? The Canadian Government will move swiftly to implement the White Paper on Indian Policy (1969) which proposes that special constitutional status of Indian nations be eliminated in five years. Indian lands will be expropriated, Indian hunting, trapping and fishing rights will be reduced and extinguished. Indian languages…will be systematically eradicated…Our people will be faced with the cruel dilemma of living in abject poverty, without status or legitimacy in the hinterland or moving to the towns and cities to become an indistinguishable element among the urban poor. That is what the Indians genuinely fear. It is surely impossible to believe.
The hon. Member for Essex, South-East (Sir B. Braine) dwelt on that matter at length. He referred to the risk to human rights. Canada is a signatory to and bound by the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. As a country it has an extremely good record in human rights. It does not deny the economic, social or cultural difficulties of the Indians. That the Canadian Parliament or a potential Canadian Government would act in the way that some people fear is unlikely.
It is clear that the Bill gives to the Parliament of Canada the right to amend or change the aboriginal treaty rights. That does not mean that the Parliament of Canada intends to abrogate those rights, any more than we in the House would unreasonably abrogate the rights of British citizens.
I have been concerned to learn of the fears of the Indian population. I am sure that if we rehearse them the Canadian Government will pay close attention to what we say. However, I am troubled that we in the House would seem to be holding out to the Indians expectations that we cannot fulfil and about which we cannot do anything. Responsibility for those peoples resides with the Government of Canada. It is with that Government that they must live and with that Government that they must deal.
We shall vote for the Second Reading of the Bill. The right hon. Member for Cardiff, South-East said that this was a matter of law, but also one of politics. Politics says that there is no case for delay. We will also vote for the Second Reading confident that the constitution is passing to safe and steady democratic hands.
7. 16 pm
Mr. Robin Maxwell-Hyslop (Tiverton) A number of interesting points have arisen in the course of the debate. I am sorry that the right hon. Member for Down, South (Mr. Powell) is not here because this is not the first occasion on which I have heard him put forward a 338 manifestly wrong assumption, and then build upon it with incontrovertible logic an edifice that would be indestructible, were it not based on nothing.
The whole of the right hon. Gentleman’s fascinating speech was based on the assumption that this Parliament had no power to legislate for Canada. The reverse is the case. Not only has the Queen in the Parliament of the United Kingdom the power to legislate for Canada, but there is no other Parliament that has that power. That is the exact reverse of the position described to the House by the right hon. Member for Down, South. Therefore, I need say nothing more about the elaborate structure that the right hon. Gentleman built upon that premise.
Alas, my hon. Friend the Member for Essex, South-East (Sir B. Braine) is also no longer present. He said that because the House had the power to legislate in the matter or to refuse to legislate in the matter—an unchallengeable proposition—it was therefore responsible for the content of that legislation. I wonder whether he would be of the view that, because the Monarch possesses the power undeniably to refuse Royal Assent to a Bill, the Monarch is therefore responsible for the content of that Bill. I doubt that he would adopt that proposition, yet it has the same logical content as the one that he offered to the House with such great emotion.
Canada has a responsible Parliament possessed of one defect and one defect only. It lacks the power to legislate for itself, a power that the House of Commons, the House of Lords and the Queen of the United Kingdom—in this context, Great Britain and Northern Ireland—alone can transmit to the Queen in Parliament in Canada.
Only by the passage of a Bill such as this can that power now be passed to Canada. I am the first to agree that this Bill is not the only way in which that power could pass to Canada. In the last Session, I introduced a Bill with only one effective clause which would have transferred from the Parliament of the United Kingdom to the Parliament of Canada full legislative power over its own affairs. For reasons into which I need not go, that Bill progressed to no more than a somewhat truncated beginning of a Second Reading debate. Be that as it may, the case for passing this Bill, and passing it now, is not that this is the only way of transmitting power to the Canadian Parliament from this Parliament, but that it is the way that has been chosen by the Canadian Parliament.
It has already been said that Members of this House are not elected by the electorate of Canada. The truth of that must be self-evident. The Parliament of Canada is elected by the electorate of Canada. On that basis, I assert that it is right that the vehicle for transmitting final legislative power from the Parliament of the United Kingdom to the Parliament of Canada must be the vehicle chosen by the Parliament of Canada and not a vehicle chosen, or tinkered with, by a Parliament which was not elected by the people who will suffer the consequences of that choice. That is why, although we have the undoubted power to amend this or any other Bill, we ought not to exercise that power on this occasion. There are many examples of circumstances in which the House should not exercise a power. This is but one of them.
Another argument which has been put forward is the Quebec would not have entered the union with Upper Canada if its leading politicians at the time had foreseen the course of events culminating in the passage of this Bill, should it pass. That may be so; but it is no reason for giving Quebec a veto.
339 I take an analogy which is arguable but equally incapable of proof. Had the Scottish Parliament foreseen the full consquences of the Act of Union, including the passage of a Bill acceding to the Treaty of Rome, it would have required a measure of foresight unusual even among Scottish Members. By the same logic, however, it could be argued that Scotland should be able to veto any constitutional change—I dodge the question of what changes are constitutional—on the grounds that the Scottish Parliament might not have agreed to the Act of Union had it, by some gift of clairvoyance, foreseen those changes any more than the leading politicians in Quebec in 1867 could have foreseen this.
Sir Angus Maude I think that my hon. Friend is referring to a point that I made. His analogy is not valid. The point about Lower Canada’s accession to the Federation was that it thought that the United Kingdom had guaranteed it a veto against the State Government in defence of provincial rights. It considered that veto to be continuous. There was no question of discontinuity or lack of foresight as to what might arise. It still believes that it has a veto and that we have guaranteed it, and the Supreme Court of Canada may well say that that is right.
Mr. Maxwell-Hyslop There is a difference between believing that one has an inalienable right and hoping that whatever one wants will always be granted by the Parliament concerned. I thought that my right hon. Friend was about to draw to my attention a rather different distinction—that whereas Scotland was at one time a sovereign State, Quebec was not. It lay entirely in the hands of the Parliament of Great Britain at that time to legislate to put Quebec into a new and larger political unit, whether or not the people of Quebec at that time found such legislation agreeable. It was not a necessary condition of such legislation by the Parliament of Great Britain at the time that there should be consent on the part of Quebec. Such consent was an undoubted political convenience, as it got the new union off to a more promising start, but it was not a necessary condition for the passage of the 1867 Act.
We may also consider other matters. In Quebec, there is a separatist movement in a situation not unknown on this side of the Atlantic. The legal right of Quebec to separate herself and to erect herself into a sovereign State by her own action does not at present exist. Therefore, that possibility is not affected by the Bill, nor is the power to do so unlawfully by auto-decision or auto-resolution affected. I should have thought that the course of events as they concern the relationship between Quebec and the rest of Canada will depend not upon whether the Bill receives Royal Assent but upon the reality of the give and take between Quebec and the other provinces in the whole nexus of relationships not only with the Federal Parliament but with the other provinces, and on the interchange of ideas in the media and the tolerance which Quebec has shown in its own provincial legislation towards minorities in its midst whose position is analogous to Quebec’s own position vis-à-vis Canada. That will be the determining factor in a Canada as remote in a century or two from now as it is now from 1867.
Those are the realities. Therefore, should we debate and consider the merit of the Bill? My answer is emphatically that we should not. The Bill has been sent to us at the request of the Canadian Parliament, and with 340 its consent. I do not believe that our constituents consider it appropriate that Parliament should have a continuing responsibility for, or legislative authority over, the sovereign, independent Dominion of Canada. The Bill is the means of terminating that responsibility.
My right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) seductively invited us to do what we have to do, but not to do it now. He said that we should wait until a particular series of legal processes has reached its point of exhaustion at the Supreme Court of Canada, or the House of Lords Judicial Committee, if it agrees to hear the appeal.
I endeavoured to intervene to ask what view he would take if that was immediately followed by another motion on another point of law. I do not see how the process can logically end by saying “Ah, but just once more.” If one admits the validity of delaying the Bill until the point which Quebec has sought to bring before the courts has exhausted the due legal processes, what would prevent Quebec from raising further legal points?
Mr. Jay Can the hon. Gentleman answer the question put by the right hon. Member for Stratford-on-Avon Sir A. Maude)? What is the position if, on the Quebec application, the Supreme Court of Canada finds that a section of this package is constitutionally invalid in the Canadian constitution? The Minister said that if we made any amendment, the resultant Bill would cease to be the Bill requested by Canada arid, therefore, that it would not be a valid Bill for us to pass. If the Supreme Court of Canada finds that part of the Bill is unconstitutional, it would equally follow that the Bill would not be valid.
Mr. Maxwell-Hyslop Surprisingly, that is not a difficult question to answer. Once the Bill has received Royal Assent, it is for the courts in Canada, not the courts in the United Kingdom, to determine whether it is good law in Canada. This is the other side of the mirror. The Court of Appeal in a unanimous judgment has held that it is not for the Canadian Indians to ask the British courts to make declarations about the validity of the Canadian proceedings. Therefore, if the Bill passes into law it will not be for me, for the Attorney-General, for the Lord Privy Seal, or for a Minister of State at the Foreign Office to pronounce on the law of Canada, because it will then have become, or not become, the law of Canada according to what the Supreme Court in Canada has determined.
This is a hypothetical question that will be answered, should the occasion arise, not by me, the right hon. Gentleman, the House of Commons, or any Minister or Law Officer of the United Kingdom, but by due judicial process within the Dominion of Canada. That is the answer to the right hon. Gentleman’s question.
Mr. Jay It is certainly a hypothetical question, but I am not sure whether the hon. Gentleman has answered it. If the Supreme Court of Canada holds that the request made to us is in some respect unconstitutional, will the Bill based on that request be law, either in this country or in Canada, if we proceed with it?
Mr. Maxwell-Hyslop I have already answered that question. That judgment will be given by the Canadian courts. They will be charged with answering that question. It will be entirely presumptuous for our legislature, or, I guess, even for a legislature in Canada, to presume to say what answer the Canadian courts would give to the 341 particular circumstances that might then arise. That is a matter for the Canadian courts. It is not a matter for the House of Commons, United Kingdom Law Officers or British Ministers. It would be quite inappropriate for them to give an answer that lies not within their authority but within the authority of the Canadian courts.
The Canadian Parliament has fulfilled the conditions of the preamble to the Statute of Westminster, even though by section 7 of that Statute it is not a legal necessity that those conditions should be fulfilled before this Parliament legislates. It is a desirable condition, but it is not a necessary one. As well as being desirable, it is an utterly essential condition, in terms of democratic theory as we know it, not because of the Statute of Westminster, but because the Parliament of Canada is elected by the Canadian electorate whereas the Parliament of the United Kingdom is not.
There has been considerable delay, of which I make no complaint. There has been considerable compromise. I had my own doubts and worries about the Bill as it first appeared. Moreover, I offer the opinion that, had the Bill been altered to give Quebec alone a right of veto, that would have transmuted it into a hybrid Bill. It would not have had the characteristics of a public general Bill. I do not believe that the hybrid Bill procedure in this Parliament is one which, after due thought, hon. Members would wish to be used on legislation wholly concerned with matters within the Dominion of Canada. That would be the most inappropriate use of the hybrid Bill procedure that there could conceivably be.
Our judgment should be to give the Bill a Second Reading tonight. We should pass it through its remaining stages in the form in which the duly elected Canadian Parliament has asked us so to do. After it has received Royal Assent, should there subsequently be any question about its interpretation or validity, that will not be the responsibility of the United Kingdom Parliament or the House of Lords to determine, but the responsibility of the properly constituted courts of the Dominion of Canada.
7. 40 pm
Mr. Donald Stewart (Western Isles) The hon. Member for Tiverton (Mr. Maxwell-Hyslop) referred to matters within the boundaries of Canada, and they are not the reasons for this debate. The debate is about whether the Canadian Government need to come to the British Parliament to ask for the patriation of their constitution. The hon. Gentleman suggested that there should be no tinkering with the Bill, and the right hon. Member for Stratford-on-Avon (Sir A. Maude) said there should be no attempt to insert anything into the Bill. With respect, that is not the intention of the amendment to which I am a signatory.
We are being asked to say “Yes” or “No” to patriation, but I am saying that Second Reading should be refused until judicial proceedings have been concluded. I do not accept the argument that those proceedings could go on interminably. In practice we know that they could, but it would be for the Government, after a reasonable time, to say that the courts were being used as a way of delaying Second Reading. We could easily have waited until the judicial proceedings had been concluded.
We would like the Canadian Government to give some guarantees for the rights of the Indian peoples. We have 342 a duty to examine what we are doing in agreeing to the wish of the Canadian Government. We have the power to correct certain injustices to the Indian peoples and to ensure that as far as possible such injustices are avoided in future.
Hon. Members have said that, with the exception of Quebec, all the provinces are now agreeable to the proposed procedure, but that was not so when the issue first arose. The Government have made adjustments or compromises to get the provinces to agree. If Parliament shows its wish to protect the rights of the native peoples of Canada, the Canadian Government will make similar adjustments or compromises to secure the return of their constitution. We cannot, like Pilate, wash our hands. It will be a conscious act if we make this agreement without any adjustment.
Treaties have been made in the past by British monarchs and Governments. If hon. Members wish to regard solemn agreements as scraps of paper, they must accept the responsibility for doing so. I know what it is like for people to be moved from their land. Therefore, I have a great feeling for the attitude of the Indian peoples.
Throughout the period of colonisation, the Crown recognised the principle of bilateral negotiations with the Indians. That principle was formalised by the enactment of the Royal Proclamation in 1763. More than 80 treaties were concluded between the various Indian nations and the Crown. Although the terms of the treaties varied, all recognised the sovereignty of the Indian nations and the consensual nature of future negotiations. That relationship was intended to endure the passage of time and Governments.
The grant of authority by the British North America Act evolved in such a way as to allow Canadian Governments effectively to regulate the internal affairs of the Indian communities as well as the relationship between the Federal Government and the Indians. The Government have been able to exercise control over all aspects of Indian life—and the infamous Indian Acts, the first of which was in 1876, denied basic freedoms to the Indians.
Since 1940, the attitude and policy of the Canadian Federal Government has been one of detribalisation and forced assimilation. The Government hoped that the Indians would disappear as a people. Many programmes were deployed over the years to eliminate traditional tribal systems of government and Indian practices, beliefs and languages and to deprive the Indian nations of the resources necessary to maintain the economic basis of their livelihood.
The Canadian Government brought that policy to its zenith in 1969 when Prime Minister Trudeau introduced a White Paper which directed that all Indian lands and resources should be assimilated into Canada, and that the constitution should be amended to delete all references to Indians. The Canadian Government believe that they are doing the Indians a favour. They want them all to be assimilated into white Canada. But that is not what the Indian peoples want. They have a right to be concerned that their rights are maintained.
Clause 6 declares equality of opportunity to all citizens of Canada. That is meaningless to the Indians, because Indian unemployment in the prairie provinces is estimated at between 60 per cent. and 80 per cent. The level of employment in those provinces as a whole is higher than the national Canadian rate.
Clause 15(1) declares: 343Every individual…has the right to the equal protection and equal benefit of the law without discrimination”. That may represent a denial of the recognised legal status of the Indian peoples as “citizens plus”. The aboriginal peoples suggest that it will lead to further abrogations of treaty rights in respect of hunting, trapping, fishing, education, health, medicine, social and economic assistance and self-government.
Clauses 16 to 23 deal with languages. There is no guarantee given to the Indian peoples that their languages will be preserved or that their children will be educated in their own languages. I have experienced a similar problem in trying to get some status for the Gaelic language in Scotland. Professor Fawcett, who was mentioned by the hon. Member for Essex, South-East (Sir B. Braine), informs us that 25 per cent. of Canadian Indians speak only their own languages and that a further 35 per cent. are bilingual. We are not talking about an insignificant number when we bear in mind the way in which Indian numbers have grown in the past 50 or 60 years.
No damage will be done to Canada by the refusal of the Bill until various matters have been put right. For the past 50 years Canada has gone its own way and made its own decisions without let or hindrance. We have a responsibility to ensure that there is justice for the Indian peoples before we give the Bill a Second Reading.
7. 49 pm
Mr. Jonathan Aitken (Thanet, East) I share the reservations voiced by the right hon. Member for Western Isles (Mr. Stewart) about the Indian peoples in Canada, although I do not go anything like as far along that road as he does in saying that they are a reason for voting against the Bill. I give the Bill a warm welcome and I shall be glad to vote for its Second Reading. With the heartfelt feelings of someone whose father, grandfather and great-grandfather were Canadians, I rejoice in the fact that Canada is shortly to have its own home-made constitution.
We are first and foremost removing an absurd anachronism, in that Canada is the only sovereign State in the world that does not have a constitution of its own that is amendable by its own legislature. There will surely be no tears in the House when this link with the antiquated imperial chain is broken.
As we repeal the British North America Act and enact the Bill, we are walking a constitutional and diplomatic tightrope of peculiar delicacy. As we walk it we must beware of being blown off by legalistic or imperialistic hot air, a few breaths of which have been felt in the Chamber this afternoon. Although in theory we are legislators in the true sense of that word on this or any other Bill, in practice on all matters affecting the constitution of Canada convention shows that we should limit ourselves to being ratifiers and implementors of any constitutionally proper request from the Government of Canada.
Until a few months ago it appeared that the request from Canada might be in a contitutionally improper form. We thought we might receive a unilateral request from the Ottawa Parliament only. I pay tribute to the immense efforts not only of the statesmen in Canada but of hon. Members on both sides of the House who were responsible for preventing the Governments of Canada and Britain from trying to railroad that unilateral request through the House. They insisted that Back Benchers would not tolerate it unless it went first to the Supreme Court of Canada for a clear constitutional ruling.
344 Once that ruling was given, a new flexibility entered into the higher echelons of the Government of Canada. As a result, Prime Minister Trudeau showed a new and welcome flexibility in his dealings with the provincial Premiers. After a great deal of talking and trading, the request has arrived in a constitutionally proper form—a Canada Bill undoubtedly supported by the people of Canada as a whole. Any attempt to block, thwart or even amend the proper legislative request of the Canadian Government will be regarded in Canada as a misguided, even hostile, action by Westminster. It will be seen as an abuse of long-forgotten imperial power, which might have been appropriate in the reign of Queen Victoria, but has no place in the thirty-first year of the reign of Queen Elizabeth II.
I am not unsympathetic to some of the criticisms from all parts of the House about the Bill and some of the processes that led to it. The Bill still bears far too many of the scars of compromise. I agree with the right hon. Member for Western Isles and others that the treaty rights of the aboriginal peoples are not protected. I regret that the minority language rights of English speakers in Quebec, and those of French speakers in Ontario, are not adequately protected. The minority rights generally were far better protected by section 133 of the British North America Act than they are by the Bill.
Above all, I regret that the inadequately covered minority rights were bargained away in Executive horse-trading between provincial Premiers and the Prime Minister in what is known as the November accord. How much better it would have been had the provincial legislatures voted on the new constitutional arrangements. That would have given confidence that the minority tights had been altered by a more desirable legislative process than Executive horse-trading among individual politicians, however excellent.
I voice those reservations simply as a friendly British observer. Such comment is free, but voting against all or part of the Bill because of such reservations, however deeply felt, would be an act of legislated sabotage that would rightly affront most Canadians. All the matters of which I have complained are domestic internal Canadian affairs. The best that we can do is to express our view and hope that, in the course of time, the Canadian Government will use the amending formula in the Bill to improve the rights of the Indian and other minorities. I welcome the suggestion of the right hon. Member for Cardiff, South-East (Mr. Callaghan) that while the Bill passes through the House there should be a clarifying statement from the Canadian Government.
In response to the point of order raised by my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop), I declare a gastronomic and aeronautical series of interests of such length and complexity that my speech would last for too long if I referred to them all. I do not think that those interests have any effect on my judgment. The great hospitality that I have received from Quebec has done neither it nor me any good, as I find myself in complete disagreement with the Quebec Government about the constitutional debate.
The Government of Quebec argue that they have the right of veto of constitutional arrangements. Although that matter is before the Canadian courts, and may be legally correct, it is politically bizarre. In April last year the Premier of Quebec signed an agreement repealing the 345 Quebec Government’s right of veto. To try to press in the courts what was denied in a repeal in a political agreement is a bizarre volte face by that Government.
We must be careful when saying what Quebec thinks or feels. There is a difference between the views and attitudes of the ruling Parti Quebecois Government and the people of Quebec as a whole. We must take into account the views of Canada as a whole, and therefore of Quebec as a whole. Following a visit to Quebec, and many friendly talks with the Premier, Mr. Levesque, the Parti Quebecois—consisting of a Government committed to the form of separatism known as sovereignty association—will find it virtually impossible to support any constitution that remains federal in nature. Many people in Quebec, other than Parti Quebecois, support Mr. Trudeau, such as the 74 Liberal Members of Parliament, the Liberal Party in the Provincial Assembly in Quebec and the English-speaking minority. The people of Quebec as a whole may take a broader view of constitutional issues than does Mr. Levesque and his party.
As the right hon. Member for Cardiff, South-East said, we must consider the political dimension of the Bill. Above all, we must consider the emotions and feelings of the 24 million Canadians. As someone who is half Canadian, I have some hereditary understanding of how much most Canadians want this admirable Bill of Rights, which entrenches certain constitutional requirements, such as habeas corpus, which have been at risk occasionally during difficult times in recent years.
I have some understanding of how strongly some Canadians wish to sweep away the anomalous machinery of the British North America Act, which leaves a great sovereign State in the humiliating position of having to come, cap in hand, to another nation’s legislature to change its constitution. Above all, I have some glimmering of understanding of the growing and swelling sense of Canadian nationhood and patriotism that has been and will continue to be enhanced by the Bill and the great debate surrounding it.
I shall end on a personal note. My late father, whose memory I cherish, was a Canadian who came to England to fly in the RAF during the war. He stayed here and sat as a Member of the House for 14 years. From time to time he used to speculate on whether the British North America Act would be repealed during his lifetime. I remember him saying to me words to the effect “When the repeal of the British North America Act comes and the Canadian constitution goes home, I hope that it will go through the British House of Commons on the nod in silence, or perhaps with just a few words of good will and good wishes from one or two speakers on either side.”
It has not worked out quite as the paternal vision saw it, but it has not been that far away from it either, for in many ways we have seen the House at its best at times this afternoon—burying our differences and seeing the big picture in preference to legal quibbles, although there have been one or two of them. Above all, we wish Canada and the Bill good luck and godspeed. I am proud to have played my small part in the debate.
7. 59 pm
Mr. Bruce George (Walsall, South) While waiting patiently to be called, I began to compare our Privy Councillors and knights—those illustrious gentlemen who 346 monopolised previous debates on Canada, as they have this debate—with Indian chiefs. I now fully appreciate the origin of the expression “too many chiefs and not enough Indians”. I am delighted that the ordinary Indians, the Back-Benchers, have pulled a few goals back. There are other parallels, too. I refer not just to the luxuriance of headgear that we have seen this afternoon. The Iroquois believed that they should never put people of high competence into office and there is an affinity between our system and theirs. As time goes on, we will appreciate that even more.
When the Lord Privy Seal comes to tot up the score of speakers, it will be glaringly obvious that a clear majority of hon. Members are affronted by the speed with which this legislation is going through. If the Government seek to introduce the Committee stage next week, or very swiftly, there will be even greater anxiety. Therefore, I ask the Government to pause and to listen to what has been said. Perhaps they should postpone proceedings until definitive rulings have been delivered by the British and Canadian courts. That will give the constitution much greater legitimacy than if there is disagreement, as there clearly is.
In accordance with the request made by the hon. Member for Tiverton (Mr. Maxwell-Hyslop), I declare an interest. I travelled tourist class to Canada and back the following day as a guest of the Indians. That has been more than equalised by my considerable loss in terms of dinners. I worked out that I was on the losing side to the tune of 18 to 3. It is not quite as strong an interest as others might have. There has certainly been a gastronomic explosion since the Canadians hit town. If I were a Canadian Member of Parliament, I would be asking how much money had been spent on entertainment by the High Commission.
The hon. Member for Thanet, East (Mr. Aitken) seemed to think that only those who supported the Bill on Second Reading were interested in and had an affection for Canada. That is not strictly true. This is an historic day. Members of Parliament and their constituents rightly regard Canada with respect, affection and admiration. One does not have to go into the “Aye” Lobby to demonstrate that affection.
Today, we have reached the final hurdle in the long-delayed patriation process. If one believes the press, our proceedings are nothing more than perfunctory—a rubber stamp. If one believes the Government, we are merely ratifying a deal that has been struck in Canada between the Canadian Federal Government, and also with the British Government. I wonder whether the Bill will be purely formal and acclamatory. Many people have expressed considerable reservations about the substance and timing of the Bill. I hope that the Government will have second thoughts and realise that we are not seeking to be obstreperous or to delay the Bill indefinitely. The legislation will have much stronger effect if there is greater consent.
Hon. Members should feel no sense of guilt that these proceedings have taken so long to arrive in the British Parliament. Had the Canadians wished to request patriation earlier, surely that request would have been granted. If there is any blame, it lies within Canada, because it was Canada which wished to continue its dependence upon the United Kingdom. I for one will be happy when that dependence is eliminated. It has been said that in strict constitutional terms the Dominion of Canada 347 is not completely independent. It is still tied hand and foot, as Lord Denning said, by the British North America Acts. The Dominion cannot alter one jot or title of those Acts. Canada is not independent. That situation must be ended as quickly as possible, but in the right way.
I have never opposed patriation. I have always wanted patriation to be completed correctly. Up to the present, I do not think that that correctness has been obvious for all to see. Why are we dealing with such an important Bill today? We are proceeding too hastily, in a way that is inconsistent with the principle of constitutionalism and fairness, of which the House is justly proud. Why the haste? Who is determining the Government’s timetable? Is it the Cabinet here or the Cabinet in Ottawa?
Why not wait a little longer for the definitive ruling of the other place? The Lord Privy Seal implied that once the Court of Appeal had made a decision, that was that. If that is so, do the Government propose to abolish the other place as the final court of appeal? In our system, no decision by the Court of Appeal can have finality. Therefore, I hope that the Government will not proceed further until the Court of Appeal has disposed of the legal claim put forward by the Indian Association of Alberta. I also hope that the Government will consider postponement until the Quebec claim is resolved.
When you were not in the Chair, Mr. Speaker, several right hon. and hon. Members subtly questioned your ruling. However, you have taken the view that the Bill is amendable and I should have thought that that has put the issue beyond doubt. It is unworthy of hon. Members to wriggle and argue that we have no right to amend the Bill. Amendments will be tabled.
My support for the Indian peoples is well known. It is obvious that the Indian peoples of Canada did not consent to the Bill or to the resolution from which it stems. They rightly place enormous reliance on the treaties that they signed and that they regard as sacred, although that sacredness is not replicated by the Canadian Government or by Britain.
In many respects the Bill is gravely defective as regards the aboriginal, treaty and other rights and freedoms of the aboriginal peoples. Those defects will be demonstrated by the amendments that will be tabled in Committee. I accept your ruling, Mr. Speaker. Amendments will be tabled and we hope that some will be accepted. It is ironic that constitution makers are often regarded by historians as demigods who bring down tablets from on high. No amount of public relations can alter the sordid nature of the accord or deal that was struck, by First Ministers of the Federal Government, but without the consent of the Indians and in their absence. Indeed, they were the victims of the agreement because some of their land and rights were distributed by the beneficiaries.
In Plato’s “Republic” Thrasymachus defined justice as what is in the interest of the stronger party in any society. A deal was struck at the Indians’ expense. I do not want to be a party to a process that will perpetuate the degradation that Indians have suffered at the hands initially of the English and then of the Canadians.
I must declare an interest, although it does not concern finance. I have a deep respect for and affinity with indigenous peoples throughout the world. They were the victims of Western expansionism. The fight on behalf of many aboriginal and tribal peoples is already too late. The Tasmanian aboriginals, the Cape bushmen, the original 348 inhabitants of the Canary islands and of Tierra del Fuego, and the tribes of New England are now extinct and will never be seen again.
In 1837, the Select Committee on aborigines, with a mixture of emotion and guilt, said: Of the Caribs, the native inhabitants of the West Indies, we need not speak, as of them little more remains than the tradition that they once existed. Of the Indians of Newfoundland it was said: Under our treatment they continued rapidly to diminish; and it appears probable that the last of the tribe left at large, a man and a woman, were shot by two Englishmen in 1823…In the colony of New Foundland it may therefore be stated that we have exterminated the natives. The Indians received the settlers with open arms. Perhaps it was the laxity of the immigration laws that allowed so many settlers in. However, the Indians paid a heavy price in the following years. They helped colonialists to sustain themselves in the inclement climate and to survive. The Lord Privy Seal spoke about Canada’s support for the Commonwealth. However, the last invasion of Canada by the Americans in 1812 was repulsed by a force that included a large contingent of Mohawk Indians.
The Mohawk nation declared war on Germany in 1939. Therefore, loyalty and affection for the Crown are by no means the monopoly of Canadians who happen to have light skins. The Indians signed sacred treaties which were to exist in perpetuity, and to last as long as the rivers shall flow and the sun shall shine”. Such treaties have been broken with an endless trail of tears, disaster, degradation and humiliation. The Indians have been confined to reserves without an economic base which makes the South African Bantustan policy seem almost liberal. They live in poverty and have a life expectancy 25 years less than the whites in Canada. They have 70 per cent. unemployment, high infant mortality and poor housing. Only in the past 20 years have they been allowed to purchase alcohol or to vote. People in Parliament will say “We wash our hands of the matter.” They are prepared to pontificate on the rights of peoples in Poland, Argentina and South Africa, but when dealing with an ostensibly Christian and democratic country they shut their eyes and say “It is no business of this House to tell the Canadians how to run their affairs.”
We have a moral and legal obligation. The Government must await the House of Lords final judgment before dismissing the legal claim that that House will receive.
The 1969 White Paper earlier mentioned demanded paper genocide and a policy of assimilation within five years. Therefore, how can the Indians trust any Federal Government in Canada? They have been reduced to third-class citizens in a land that they once owned. They occupied it 20, 000 years before the British or French knew that Canada existed.
Thankfully, some Canadians have a sense of guilt about what has been done to the Indians. Even Mr. Trudeau said some time ago: The Canadians are not too proud about their past in the way in which they treated the Indian population of Canada. I do not think that we have any great cause to be proud. One may think that that amounted to some encouragement from the Canadian Prime Minister. However, he later said: The Indians are really saying, ‘We were here before you. You came and you took the land from us. You cheated us by giving us some worthless things in return for vast expanses of land and we want you to preserve our aboriginal rights’. Our answer—it may not be the right one or the one that is accepted—is no. 349 Is this the fine liberal politician who goes around the world pretending to support indigenous peoples? He and his country have a good record on human rights abroad. Unfortunately, that record does not extend far beyond the boundaries of Canada.
The Conservative leader, Joe Clark, said: The aboriginal people were here before our civilisation. Our treatment, our meagre, mean treatment of them, has increased our obligation, not diminished it. Despite these fine words, little has been done. Some hon. Members have read that members of the Canadian Federal Parliament said: The aboriginal peoples have little reason to trust the Federal Government because, going back over 440 years, they have been deceived and been given broken promises. What trust can Indians have in the Canadian Federal Government or the provincial Governments? The Select Committee on Aborigines 1867 said, in effect, “Do not transfer power to the provinces because that would be disaster”. It said that the aboriginal problem should be considered as a duty peculiarly belonging and appropriate to the Executive Government because it is not a trust that could conveniently be confined to local legislatures. The way that provinces have responded on the patriation debate over the past two years confirms our predecessors’ analysis of almost 150 years ago. The Indians will get little from the provinces and slightly more, but not much, from the Federal Government.
Can one hope that the Indians will receive a little more from the courts? They can expect very little; an analysis of court judgments shows a long history of powerlessness on aboriginal rights such as hunting and fishing and on treaties. The Canadian Parliament has rendered the judiciary almost powerless to protect Indian rights.
Lord Denning testified to the importance of the treaties signed in perpetuity in Canada. The hon. Member for Essex, South-East (Sir B. Braine) agreed with that. Lord Denning said: No Parliaments should do anything to lessen the worth of those guarantees. That is a clear indication of our residual duty here in Parliament.
Some treaties were entered into as sovereign agreements between Britain and various Indian nations. Some bands have had no treaties at all and, therefore, suffered. What does the Federal Government say about these sacred treaties? I have read one of the many leaked documents emanating from the Federal Government which said, on the argument that the treaties gave aboriginal rights on the Indian claims to self-government, This argument is based on Indian claims that British sovereignty over Indian lands resulted from Indian acceptance and consent. Britain, in fact, asserted sovereignty over the lands in question by conquest or cession from France or by discovery and settlement. I have never heard such a brazen expression of dominance.
Does the Bill do anything to protect the Indians? Lord Denning thinks it does, but the Indians do not agree. We heard the phrase”existing rights”. To many Canadians, and hon. Members sympathetic with the Indians, it seems that that phrase will lead to confusion and ambiguity. The inclusion of clause 35 sounds fine. It states: the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed. That sounds fine but it also means that those Indians whose claims have been extinguished in the past without 350 compensation will have their avenues for redress closed for ever if clause 35 is passed. Bands who have lost most will gain nothing from this legislation.
Clause 35 has had a chequered history. It was not in the resolution of October 1980, then it was included, and was later ditched because of the sordid accord. It was reincluded, containing the word “existing”. That word was described by the Minister of Justice as quintessentially a liberal compromise. The addition of “existing” to clause 35 was a shabby compromise and was certainly done without Indian consultation. An NDP Member said: It is a sad reflection of the events of 5 November 1981, when the First Ministers met privately to dump treacherously entrenchment of section 34, never having said a word publicly of their opposition or any reasons for their opposition. Lord Denning said: This post-patriation conference will settle Indian rights. This could be a bogus consultation. It could be another example of divide and rule that the British have taught the Canadian Government. It is up to Prime Minister Trudeau to decide who represents the Indian nation and this would be open to abuse.
Lord Denning continued in his appeal court judgment: Will not the Governor-General protect the Indians? Clause 48 refers to the powers of the Governor-General but that was not debated in the Canadian House of Commons because it was guillotined. The many sensitive issues involved in the powers of the Governor-General is one aspect that we must bring up in Committee. On listening to the debate, I am convinced that there are many imponderables and issues that need to be clarified. Therefore, surely delay is imperative.
Rights are supposedly entrenched in certain clauses. Other clauses might be used to unentrench rights. Therefore, one understands every reason why the Indians view with suspicion the deal struck in Canada and the transatlantic deal struck between the British and Canadian Governments.
The Indians’ future will be in jeopardy without their securing a land base. The arguments on human rights have been dealt with. I believe that they will be raised again in Committee. We must not have double standards. We must not deny that human rights are being violated in Canada.
The native people of Canada have been denied genuine consultation in Canada and the protection of the courts and of provincial governments and Federal Government. They have made a costly, long journey to this country to speak to Parliament, to put their case before the courts and to get a response from the British public. What an indictment of the Canadian Government when the Cree, the Micmac, the tribes of Labrador, and the Mohawk are forced to come here to try to get from this House, which is many thousands of miles from their home, redress for their grievances! Will we deny them our support? Will we seek refuge in the argument of party loyalty to our parties or to a concept of sister parties—the Liberals here supporting the Liberals there and the Labour Party supporting the NDP? Will we waste our critical faculties in thinking up bogus party loyalties?
I hope that we do not follow Mr. Trudeau’s advice and collectively hold our noses. I hope that we shall not be cowed into submission. A couple of years ago Mr. Trudeau said that he had heard that Members of Parliament may object to patriation, but all I can say is, ‘They had better not try.’ 351 I hope that hon. Members will vote against Second Reading. I would have hoped to have a reasoned amendment to vote on. It would have allowed us to express our qualified support for patriation. I regret therefore that I cannot support Second Reading. I have reservations about voting against it, but, because of my loyalty to and belief in the native peoples of Canada, the only genuine action that I, and I hope others, can take is to vote against Second Reading and introduce amendments in Committee. I hope to God that the legislation, when passed back to Canada, will afford the native peoples the rights that for so long they have been denied.
8. 22 pm
Mr. John Roper (Farnworth) The House respects the convictions of the hon. Member for Walsall, South (Mr. George) in defence of Indian rights, but, as I have given an assurance that I shall not detain the House for long, I shall not follow him in detail. However, I draw attention to paragraph 9 of the Foreign Affairs Committee’s report. The first two sentences state: The fact is that Indian rights and affairs have been an exclusive responsibility of the Canadian Government and Parliament for generations. For at least fifty years, the UK Government and Parliament have lacked even residual constitutional authority to intervene in relation to those rights or affairs. We must take that statement into account, even though we may share a great deal of the hon. Gentleman’s emotion and have great sympathy for the Indians.
The Social Democratic Party supports Second Reading. In spite of the problems surrounding the patriation of the Canadian constitution, we believe that it would be wholly wrong to refuse the request of a sovereign, independent Commonwealth Government to take charge of its own constitution. We believe that a refusal by the House and Parliament to pass the Bill would be widely misunderstood, not only in Canada, as an attempt to resurrect a dependency between our countries which has long since disappeared.
Like other hon. Members, I have received and read many submissions from people in Canada who are dissatisfied with the Bill. I am relieved that, as a result of last year’s negotiations between the provinces and the Federal Government, the number of such submissions is now much smaller. I too, am sorry that the province of Quebec and some of the representatives of the aboriginal peoples are still dissatisfied with the legislation, but, as has been said, litigation on their objections is still proceeding before the courts in Canada and in this country. It must have been difficult to decide whether to proceed with the Bill while the actions were before the courts. On balance, my right hon. and learned Friends feel that the Government are right to bring the Bill forward for Second Reading today.
I accept generally what the Lord Privy Seal said about amendment to the Bill, but a number of my hon. Friends feel that, if the House of Lords reversed the Court of Appeal decision while the measure was going through this House or the other place, Parliament should reconsider its decision.
Like others who have spoken in support of Second Reading, I, too, wish Canada and its people a peaceful and prosperous future.
8. 25 pm
Sir John Biggs-Davison (Epping Forest) It does not look like it, but this is a historic occasion. The Lord Privy Seal said that this was a unique debate. I find it a relief to turn from domestic pre-occupations in these hard times to a grand Commonwealth constitutional occasion.
Like others right hon. and learned Members and one of your predecessors in the Chair, Mr. Speaker, I have Canadian kin. I warmly welcome what my right hon. Friend said about the admiration that we all feel for Canada. I also seize the opportunity to thank all those Canadians who have taken so much trouble to inform me of the problem. Through the months of controversy, many of us have grown closer to colleagues in all parties in the other House of Commons and the Senate.
My hon. Friend the Member for Thanet, East (Mr. Aitken) spoke of the great anachronism of the British North America Act. I do not dislike all anachronisms or anomalies on principle. Among the mass of correspondence that I have received from Canada, there have been several letters from Canadians who are well satisfied with the arrangements under the Act. I doubt, however, whether there is an hon. Member who does not believe that it is time that Canadians were endowed with a constitution made in Canada by Canadians.
The Lord Privy Seal said that the consent of nine out of 10 provinces was sufficient. My right hon. Friend the Member for Brighton, Pavillon (Mr. Amery) asked whether there was any precedent for this Parliament legislating changes in the Act affecting provincial rights without the unanimity of the provinces. The Lord Privy Seal referred to the case of British Columbia in 1907.
I think that we should set the record straight. The British North America Act 1907 established a new scale of financial subsidies for the provinces in lieu of those that had existed previously. There had been a Dominion provincial conference, all nine provinces had been consulted and the amendment was made with the consent of all the provinces except British Columbia. The Act was passed by the British Parliament. However, the words “final and unalterable settlement”, which were included in the original draft, were rejected here on the ground that they were inappropriate in a United Kingdom statute. This change met British Columbia’s principal concern, so that in the end there was unanimity. My right hon. Friend the Lord Privy Seal only needed to turn to page xxxii of the first report from the Foreign Affairs Committee, so admirably presided over by my hon. Friend the Member for Stroud (Sir A. Kershaw), because the position is there set out.
Also on the same page is a quotation from the Canadian White Paper of 1965: In fact, in the 97 years that have elapsed since Confederation, no amendment has altered the powers of the provincial legislatures under section 92 of the British North America Act without the consent of all the provinces. This clearly reflects a basic and historic fact in Canadian constitutional affairs”. Then we have to reckon with what the Supreme Court of Canada said: No amendment changing provincial legislative powers has been made since Confederation, when agreement of a province whose legislative powers would have been changed was withheld. There are no exceptions. So much for precedent.
My right hon. Friend the Member for Stratfordon-Avon (Sir A. Maude) made the point that, while 353 Quebec is one province, it is not just a province. French Canada, the province of Quebec, include more than a quarter of the total population. They constitute—and this has been said by many hon. Members—one of two founding nations, its rights protected by our predecessors here. Incidentally, as a matter of history, its Roman Catholic people were granted full civil rights before the emancipation of the Irish and other Catholics of the United Kingdom.
I have put my name to the reasoned amendment, which was so eloquently spoken to by my hon. Friend the Member for Essex, South-East (Sir B. Braine), but I shall vote for the Second Reading of the Bill. I shall do so less out of respect for the judgment and timing of the Foreign and Commonwealth Office than out of regard for the sovereignty and dignity of Canada, which I respect so much. However, I must counsel delay at a further stage, not because I presume to say whether Quebec has the right to a veto, but because I think it prudent, proper and sensible to await the completion of the legal proceedings that the Government of the province of Quebec have undertaken. I do not want this House to become the excuse for or to attract the odium of the break-up of a great confederation which our forefathers helped to build upon the parliamentary principles that we practise in this place.
8. 32 pm
Mr. George Foulkes (South Ayrshire) At the start, I should tell the House and, even in his absence, the hon. Member for Tiverton (Mr. Maxwell-Hyslop) that, with my hon. Friend the hon. Member for Kingston upon Hull, Central (Mr. McNamara), I spent a few days in Quebec as the guest of the Quebec Government. I also had a balancing day, following that, with my own native people in Nova Scotia. I speak as someone who strongly opposed the original package which was to be put before us. It was, in the view of the Select Committee and of the Supreme Court of Canada, improper. It manifestly failed to have a substantial measure of provincial consent. The comments and reactions of the Prime Minister of Canada at that time, asking us to “hold our noses” and pass the legislation, were most unhelpful. Indeed, the advice given to the Government and to the Select Committee by Foreign Office officials was equally unhelpful in the consideration of this matter.
It ought to go on record that it was the Select Committee on Foreign Affairs—this is a tribute to the system of Select Committees—that fired the warning shots to the peoples and Government of Canada, indicating that the original package would not have been passed by the House and Parliament. If the members of the Select Committee had listened to what was being said by Government spokesmen at the time, they would have received the clear impression that anything that the Federal Government of Canada asked of the British Parliament would automatically be approved. That was clearly not the case.
Thankfully, that package was withdrawn. The Supreme Court of Canada gave its judgment and the Federal Government rightly accepted it and went to a conference of First Ministers in Ottawa. My hon. Friend the Member for Kingston upon Hull, Central and I had the great privilige of attending that conference. Many Canadian people who were there and many others in Canada had the feeling that the conference was to some extent a sham, that 354 the Prime Minister of Canada was going through the motions, that the talks would collapse and then he would shrug his shoulders in typical fashion and say that the provinces would never agree—of course, they would not. Then he would press on as originally planned and put the original package to us for our approval. But anyone who had been there would have been convinced, as we were, that they were real negotiations. There was give and take between the Federal Government and the provinces.
At one time there was a clear indication that the conference would reach an agreement which would include Quebec but might not include the Western provinces, so it is clear that alternatives were being discussed. It had been thought that the conference might last for a day and a half, but it went on for nearly a week. At the end an agreement was thrashed out. No hon. Member should be unaware that real discussion and negotiation took place.
However, two issues remain unresolved, and I wish to speak briefly about both. With my hon. Friend the Member for Kingston upon Hull, Central I visited Quebec, where we received unfailing courtesy. Hon. Members will have received a well-argued case advanced by Quebec. I have read with great care the most recent, second memorandum, sent this month.
It is clear that Quebec is different from the other provinces, not simply because it is a founding province but because of its large French population and its different juridical system. When I heard the right hon. Member for Stratford-on-Avon (Sir A. Maude) argue that case too far, I thought of my own country—Scotland—and the precedents that he might create in this country if he carried the argument too far.
Notwithstanding the reasoned arguments advanced by Quebec and put forward on its behalf tonight, at the end of the day we must make a balanced judgment. On the one side, supporting patriation, are the Federal House of Commons and Senate of Canada, with the House of Commons including the Members from the province of Quebec, and nine of the 10 provinces of Canada. On the other side, there is the province of Quebec, or at least the Government of the province—a Government committed to separatism—who would always find it difficult to endorse a new federal constitution for Canada.
If we agree, as I hope we shall, to enact the Bill, Canada will not have a static constitution. I hope that through its amending formula it can be changed, and I hope that there will be further discussions between the Federal Government and Quebec to try to resolve some of the outstanding issues.
The other question concerns the rights of the aboriginal people, who include not only the Indians who have been referred to in all the speeches so far but the Inuit and Eskimo peoples. I have received correspondence on the matter, and when we were in Ottawa we spoke to representatives of the Inuit people. I understood that they accepted the proposed package and agreed with patriation.
Mr. McNamara Does my hon. Friend agree that one of the ironies of the situation is that the province of Quebec has been most generous to the Eskimo people in its James Bay provision, and that in some ways the Federal Government could regard that as a generous way of dealing with the aboriginal people?
Mr. Foulkes I do not dissent from, nor do I disagree with, what my hon. Friend the Member for Walsall, South 355 (Mr. George) said earlier. My hon. Friend puts the case for the Indians passionately and with concern, and he has knowledge and understanding of their case. I have listened to him with great care, not only today but on many other occasions.
On the all-party Select Committee considering the matter we heard a number of representations by Indian delegations from different provinces. They put the case very well. I have read carefully not just clause 25, which states that there will be no abrogation or derogation from treaty or other rights, but clause 35 on existing rights and the most important clause 37, which deals with the constitutional conference.
The Select Committee said that the proper forum for discussion of the rights of the Indian peoples was the constitutional conference. Unlike my hon. Friend the Member for Walsall, South, I cannot dismiss the Federal Government of Canada and all the provincial governments as having no concern for the Indians; I cannot accept that all concern for them rests only with us. That is an arrogant assumption and grossly discourteous to the peoples and governments of Canada. I trust that the constitutional conference will give proper consideration to the rights of the Indian peoples.
Does my hon. Friend the Member for Walsall, South believe that the Bill should be used as a lever to get more rights for the Indians? The run-up to patriation has achieved much for the native people, not just in publicity for their cause but also in writing things into the Bill. Would it now be proper for us to threaten or qualify, to hold up or even to block the Bill until specific action is taken on behalf of the natives? What would that specific action be? For which groups would it be? For the Métis? For the Indians? Which tribes of Indians will have the final veto before the Bill is enacted? That is a dangerous path for us to go down. There is a substantial guarantee for the rights of the native peoples in the Bill.
In the view of the Select Committee, of which I am proud to be a member, this is a proper request from Canada. It satisfies the test of its own amending formula. To vote against the Bill on Second Reading would be to vote against a proper request from the House of Commons and Senate of Canada, supported by nine of the provinces. It would be to vote against a final act of decolonisation. We must support the Bill on Second Reading and end an unacceptable imperial anachronism by patriating to Canada its constitution and letting all future decisions regarding the government of Canada be made in the proper place—Canada.
8. 43 pm
Mr. Percy Grieve (Solihull) I do not always find myself in complete agreement with the hon. Member for South Ayrshire (Mr. Foulkes), although we have many interests in common, but I say immediately that I am in complete agreement with everything that he has just said.
In this debate and in considering the Bill we must take the broad and realistic approach. We must not allow ourselves to become legalistic. I am not suggesting that we should abandon the rule of law—far from it.
Since 1931 the responsibility of what in those days would have been called the Imperial Parliament for the constitution of Canada has been an anomaly and an anachronism which we shouldered at the request of the Canadian people, the Federal Government and the Canadian provinces, because they could not reconcile the 356 differences which they foresaw arising over the years with regard to the respective powers of the federation and of the provinces.
This is always a problem in a federation. In the United States of America, for two centuries there has been a pull and a tension between the powers of the states and the powers of the federation. Because the differences in Canada could not be reconciled in 1931, we continued to shoulder a responsibility which we voluntarily abandoned to all other countries of the Old Commonwealth and which we would have given to Canada had she wanted it. The time has now come when the federation has said enough is enough. It is asking Parliament to give it that full power over its affairs, which Australia and New Zealand already have and which South Africa had.
A year and a half ago, when the matter was first mooted, it would not have been right immediately to accede to that request, because the provinces were still bitterly divided. However, that is no longer the case. All but one of the provinces are now agreed that we should give to Canada the power over its constitution. I shall not say “Give back”. We have become bogged down with words such as patriation and repatriation, which are rather horrid inventions to meet the case. However, we have been asked to give Canada the ultimate power over its affairs that a sovereign State should have. We face two difficulties. The first is Quebec and the second is the case that has been made out by representatives of the Indian communities. I have had the honour to meet most of the delegations that have been in London during the past two to three months.
As to Quebec, the position would appear to be that one province says that Britain should keep the residual power while the other nine provinces go along with the Government of the Dominion of Canada. My right hon Friend the Lord Privy Seal said in his opening speech that it would be contrary to precedent for our Parliament—the matter resides not only with the House of Commons but must be decided by the Queen and Parliament in the end—to give Canada the right to have control over its affairs. Because one province, in a special position, is holding out, we should not say “No” in complete disregard of the precedents that have been set in every case that has come before Parliament since the British North America Act 1867. For that reason the Bill will have my full support. I hope that it will have the support of most of my right hon. and hon. Friends and of many right hon. and hon. Opposition Members.
My hon. Friend the Member for Essex, South-East (Sir B. Braine) made a strong speech on behalf of the Indian communities. The Queen is advised in Canada by the Prime Minister of Canada. She is not advised by the Prime Minister of the United Kingdom. Therefore, the rights of the Indian communities in Canada must be affected in Parliament by the advice given to the Queen by the Prime Minister of Canada. It does not matter a whit that the ultimate sovereignty is now being transferred to Canada from the United Kingdom Parliament.
Mr. English I thank the hon. and learned Gentleman for giving way. I should not like Hansard to record a constitutional inaccuracy. I am sure that he will appreciate that the Queen is advised by the Cabinet of Canada or of the United Kingdom, and not by their Prime Ministers.
Mr. Grieve I apologise to the hon. Gentleman for arty ellipticity in my speech. I do not believe that I was 357 misleading the House, and I am sure that the House knows perfectly well what I meant. The hon. Gentleman’s intervention has not greatly assisted the debate.
I have the utmost respect for the right hon. Member for Down, South (Mr. Powell). I always listen with great interest and respect to the views that he expresses in this Chamber. His views never lack cogency or persuasion. However, in my view he is wrong to suggest that we should vote against the Bill because, as he says—I hope that I understood his meaning, and no doubt he will correct me if I am wrong—we are being asked to give Canada a constitution which Canada should really make for herself. May I say, first, that Canada has made this constitution for herself. The constitution comes to us from Canada as an Act of the Canadian Parliament, which it has asked Her Majesty the Queen in Parliament in this country to enact.
Sir Bernard Braine It is not a demand.
Mr. Grieve I did not use the word “demand”. Far be it from me to use any such word. It is a request.
The second point is that, within the constitution that we are asked to give Canada at her request, there is the procedure for amending that constitution. It is true that, in most cases where a federal constitution has been enacted or propounded and agreed, it has been done within the federation by a process of consensus, a constitutional council or a committee, and so on. There is no reason why it should not be done in the way that has been suggested by the Canadian Government, with the consent now of nine of the Canadian provinces and which, within itself, has the means of amending that constitution.
I shall not waste time at this late hour by reading the particular passage, but it is contained in articles 38, 39, and so on, of the proposed Canadian Charter of Rights and Freedoms, under the heading Procedure for Amending Constitution of Canada”. Therefore, the objection of the right hon. Member for Down, South to the Bill is fallacious. Having said that, and having replied to my hon. Friend the Member for Essex, South-East, I wholly support the Bill, for the reasons that I have given.
Mr. Speaker Order. The Front Bench has agreed not to start the winding up until 9. 20 pm. I hope, therefore, to call at least three or four hon. Members before then.
8. 54 pm
Mr. David Ennals (Norwich, North) I hope that the hon. and learned Member for Solihull (Mr. Grieve) will forgive me if I do not follow his remarks, for reasons of time. I hope, too, that the House will understand if I deal with only one issue, and that is the question of the Indians and the protection of their rights. In this connection I associate myself almost completely with what was said by the hon. Member for Essex, South-East (Sir B. Braine) and by my hon. Friend the Member for Walsall, South (Mr. George).
The hon. Member for Thanet, East (Mr. Aitken) said that the treaty rights of Indians are not properly protected in the Bill. That is so. I believe that that alone is enough of a reason for the Bill not to be passed at this stage.
I join in the criticism of the Government for bringing the Bill before the House when there are legal proceedings under way, not only in Canada, but in Britain. I do not 358 believe that there is a need to rush the measure through. I hope that plenty of time will be given between the Second Reading and the Committee stage.
It would be easier for all of us to wash our hands of the whole affair and let the Canadian Government have what they want, as the right hon. Member for Down, South (Mr. Powell) said. Although I have no doubt that the Bill will go through the House, I hope that what is said today and what will be said in Committee will be listened to with respect in Ottawa and throughout Canada. I hope also that before Royal Assent is given some action will be taken or a statement will be made by Prime Minister Trudeau and his Ministers to respond to the deeply held convictions that have been expressed by many hon. Members on both sides of the House.
Frankly, I believe that it is not good enough that the Bill has been prepared without consultation with the Indian nations. It is easy to say that they are only a minority. All right, they are just a minority, but the tradition of the House is to preserve the interests of minorities. We are asked to approve a new Canadian constitution with a detailed charter of rights and freedoms when we know that those whose rights the charter claims to protect are deeply sceptical about whether their rights will be protected. I believe that we should satisfy ourselves, and not only them, as they will not all be satisfied. The Canadian Prime Minister and the Government can do much more than they have done to satisfy the real concern of the Indian peoples.
The hon. Member for Inverness (Mr. Johnston) referred to some of the Indians’ concerns about the White Paper on Indian policy in 1969, which would affect their special constitutional status. He referred to the danger of the expropriation of Indian lands, the importance that Indians attach to Indian hunting, tracking, fishing rights and so on, to the preservation of their cultural traditions and history and their own form of government.
In other parts of the world, too often we have seen proud peoples with proud traditions and cultures being forced into a common mould because there was not enough protection for them. If we look at the Indians in the United States, we can see exactly what I am talking about.
Mr. Foulkes What about the Irish?
Mr. Ennals I want to preserve the rights of all minority people, with their own languages, so that they can feel safe in the country in which they are proud to be.
When I have heard representations by Canadian Indians in London, I have heard none of them say that they want to break up the federation or that they do not want to be Canadian. However, I have heard every one of them say that they want to be Indian and that they want to preserve their nationhood. It is difficult to understand why in the charter there is the requirement for a constitutional conference to be held within a year. I wonder why that has not been done before and why there has not already been a definition of the rights of the Indian nations that are to be preserved at the constitutional conference.
If that were done, and if the Canadian Prime Minister and the Canadian Government were to set out carefully and after consultation with the Indians just what rights they will protect, that would help. It is no good merely saying that the existing rights will be protected. Many Indians are not satisfied with some of their present rights. Many of them do not know what are the intentions of the Canadian Government. The House is the last place to which they can come to make their representations.
359 Why have men with great dignity presented their case proudly and sincerely to us over many months? It is because they feel and care for their own Indian nationhood, their traditions and their culture, not just their standard of living. Of course they care about their standard of living, but it is for their nationhood, as a part of Canada, that they care most.
My plea is that what has been said by others better qualified and more eloquent than I will not only be heard in Ottawa, but will be acted upon by the Canadian Government. I hope that what has been said will be publicised and that when the constitution is, as it must be, patriated to Canada, it will be done at a time when the Indians themselves feel that their rights are safe and that the trust that they have in the Crown and Parliament can still be put in the Crown and Government in Canada.
At this stage, without the necessary assurances, and with all the uncertainties for the Indian population, I cannot vote for the Second Reading of the Bill.
9. 1 pm
Mr. Mark Wolfson (Sevenoaks) I am especially pleased to have the opportunity to take part in the debate. I broadly welcome the Bill, but I shall concentrate my remarks on an area in which I have particular knowledge and concern.
When I stood for selection for a parliamentary seat, I included in my curriculum vitae the fact that I had been a teacher on a remote Indian reservation in British Columbia. I listed it, as do most of us at that stage of our political careers, in the hope that that experience would help my application to end up higher rather than lower in the pile. Neither I nor my selectors ever expected that that experience would be so directly relevant to my work in the House.
The time that I spent at Aiyansh on the Nass river in British Columbia among the Nishga Indians was happy and fulfilling. I can speak now with some authority, understanding and certain warmth not only for the Indians whom I knew, but for all those Canadians who are truly native horn.
The House, in its discussions on the Bill, should give special consideration to how the rights of the Indian peoples can best be safeguarded. The Indians of the Inuit and Métis nations are minority groups still living uneasily with modern Canada. Consideration of their position today takes us back a quantum leap in time to the very root of British North America. In their eyes, their ties with the British Crown and Parliament have always been of a special kind. That is what the treaties mean to them.
The House has a responsibility—it may be an uncomfortable one—to act with care before that link is broken. As has happened many times before, we debate and decide with history at our shoulder. Canada’s economic progress—fast, inexorable and continually reaching further into the wild land—is inevitably, as the Indians see it, a threat to the Indian way of life. However, they appreciate that it is also an opportunity.
The Indian way of life is, to a degree, Westernised. Many Indian bands and individuals are, to an extent, adjusted to and earning from the normal Canadian economy. But let us make no mistake about it. There is a strong Indian identity and an increasing Indian population. The Department of Indian Affairs estimates that four centuries ago the Canadian Indians numbered 250, 000. By 1900, the number had dwindled to 100, 000. 360 Now the number of registered Indians is once again 250, 000 or more, and there are 1 million of Indian descent. In the bands, which is the description used for an Indian community, 75 per cent. of the population are under 21 years of age. Thus, they are not a dying race but an increasingly articulate, vigorous and growing part of Canada’s population.
I wish to take up two points made by the right hon. Member for Leeds, East (Mr. Healey) in his constructive and balanced references to the concerns of the aboriginal peoples. I, too, confirm that it is now clear to me that after much discussion and some conflicting views the two main concerns of the aboriginal peoples centre first, on the description “existing aboriginal…rights” in clause 35, and, secondly, on the lack of any adequate method for representation of their views to and with the Canadian Government.
The political championing of Indian rights is, to say the least, not a generally popular cause in Canada. I therefore hope that the Canadian Government will decide to give firmer assurances on those two points while the Bill is still before the British Parliament.
In response to your direction, Mr. Speaker, I have much shortened what I wished to say. Throughout the world today, Governments and citizens are at last waking up to the responsibilities of majorities towards the rights of minorities and to the benefits of preserving and nurturing native cultures. Canada already has a great tradition of supporting human rights on the world stage. I hope that she will not now, nor ever in future, forget that she, too, has a great responsibility at home for her own original native population.
I shall abstain in the Division tonight, not in anger against the Bill or in insult to the undoubted sovereignty of an old dominion, but in sympathetic hope for the future well-being of the Canadian with whom I spent good days and whose way of life I still admire.
9. 8 pm
Mr. Michael English (Nottingham, West) I find this an occasion of almost infinite sadness. It is almost exactly—there is one year to go—200 years since a British Prime Minister had to come before the House to ask it to ratify the treaty which gave the United States of America the independence for which it had fought. Many people in what is now the United States had fought on the side of what is now the United Kingdom, and many of them then migrated to Canada which has remained with Britain from that time to this.
We do not need to argue about the causes and reasons for the Bill. It was decided by the Canadians in 1931, and the necessary clause was drafted in Canada then by all the provinces and the Federal Government.
I shall vote, reluctantly, in favour of the Bill. But it is still a matter of sadness to me and, I hope, to everyone in the House—partly for historic reasons.
I believe I speak for both sides of the House in saying that the way in which the Federal Government of Canada originally assumed that this Parliament was a rubber stamp is objectionable. We are not. When the majority of provinces in Canada disagreed with their Federal Government, the Canadian press said that the Bill would automatically go through the House of Commons in a couple of days, whatever the Federal Government 361 decided. We were placed in the position of trustees, not by our own will, but by the provinces of Canada and the Federal Government in 1931.
The analogy that I have used on previous occasions is that Canada has a wall. On one side there is a large garden, which I call the federal part. On the other side there are 10 small, attractive gardens. Since 1949, we have had only the keys to the doors in the wall—nothing else. The provinces in Canada have the power to amend the Canadian constitution in respect of each separate province. The Federal Government, at least since 1949, has the power to amend the Canadian constitution on federal matters. All that the Bill should be about is the keys to the 10 doors in the wall between the 11 gardens.
We are supposed to make a decision, but we have been presented with the nasty proposition that we are to legislate, so to speak, at the last gasp. We have to make a decision for Canada and embed it in the Canadian constitution as if it were the American constitution where an alternation can only be made with the assent of three-quarters of the States. We should never have been placed in that position, but, given that we were, it was wrong and improper of the Federal Government of Canada to suggest that we would automatically agree with what they suggested. The Third Report of the Select Committee pointed out—I shall not go into detail—that the Foreign Office more or less assented.
I asked the right hon. Gentleman why he did not comment on that earlier. He should have done so. We are not a rubber stamp. A Parliament that has been in existence for more than 700 years is hardly likely to be a rubber stamp. The Foreign Office has been in existence for a somewhat shorter time and has been known to be a rubber stamp. I ‘know that the right hon. Gentleman is only the second Cabinet Minister in his Department, but he should have made the point in his opening speech and answered the intervention which I made. I am surprised he did not. He said that he was not going to do so.
It is wrong for a Department of State improperly to advise its Minister—under whatever Government. If Ministers are improperly advised, that is a matter for investigation. There is something wrong in a system of government where wrong advice is given, publicised, and statements made. I do not blame Ministers under successive Governments. They probably believed what they were saying, but it was wrong. They were told by someone what to say.
What is basically wrong with our whole system of Government is that improper and incorrect advice can be given and a Cabinet Minister can come before the House, as the right hon. Gentleman did today, and say that he is not going to comment. I think that he should. I accept that it was not to the right hon. Gentleman’s own Government that this advice was given, but if we have a system of government at all, the people in it at this moment in time must surely be responsible for the advice given to their predecessors; otherwise Ministers are liable to be misinformed for ever after.
I do not propose to talk about what might be regarded as Committee points. I am grateful that there may be Committee points. I speak little French, but I regard this—language—as a serious issue. At a later stage I hope to be able to say that I have a deep regret that the Quebecois were not carried with the rest of Canada about 362 this Bill. This is not the time to do so. I shall vote for the Bill—I believe that the majority of the House of Commons will—but I think that in some ways we shall regret it.
We would willingly have voted for the repeal of section 7 of the Statute of Westminster. After all, that section was written in Canada, and not by us. I do not think that any of us is willingly voting for the introduction into Canadian law of things that we have not thought of ourselves.
9. 17 pm
Mr. Richard Body (Holland with Boston) Minutes are precious, and I know that the hon. Member for Nottingham, West (Mr. English) will forgive me if I do not follow his argument.
Not for the first time, the right hon. Member for Down, South (Mr. Powell) has pointed the House in the right direction. Far better that we should renounce all such powers we might have under the British North America Acts and say to the people of Canada “This is 1982, and the year is long since passed when we had any business interfering with the constitution of Canada.”
The other objection to the Bill is that it seems to place the House in an intolerable dilemma. To slight or offend the people of Canada is our furthermost desire. All of us have too much respect and affection for Canada to do that. The Bill invites us to approve a charter of rights, certain parts of which refer specifically to the rights of the first nations or Indian peoples.
My hon. Friend the Member for Essex, South-East (Sir B. Braine) has shown clearly and cogently how certain parts of that charter offend and infringe two international agreements to which we are signatories—article 17 of the Universal Declaration of Human Rights and articles 1 and 27 of the International Covenant on Civil and Political Rights.
Some of us may not wish to be signatories to those two agreements, but we are bound by them. So long as we choose to be fettered by those covenants, they remain shackles upon the House and we should recoil from any legislation that infringes upon them. To do otherwise would be dishonourable—even disreputable. It is, of course, true that Canada is also a signatory to both agreements, but whether she decides to infringe them is not a matter for us. Two wrongs cannot make a right.
The Indian nations are justified in questioning the bona fides of the Canadian Prime Minister. I say that with great regret. As long ago as 1969, he spoke in Vancouver about the need to bring to an end the historic treaty rights of the Indian peoples and spoke of how in due course those rights must be extinguished. He refuses even now to sit at the conference table to discuss and define what those rights are. He will not do so until the new constitution of Canada is established, and at that stage he will have the power to override the Indians.
That is our dilemma. We do not wish to offend Canada, but if we pass the Bill in its present form we shall infringe two international agreements and at the same time disregard the rights of the Indian nations given under 83 treaties between them and the British Sovereign. For that reason, I shall find it difficult to support the Bill.
9. 20 pm
Mr. Clinton Davis (Hackney, Central) I make my maiden speech as a spokesman on foreign affairs in what has been a remarkable debate by any standards. Right hon. and hon. Members on both sides of the House have spoken 363 with considerable knowledge. We have heard speeches from the hon. Member for Stroud (Sir A. Kershaw), who chaired the Foreign Affairs Committee with distinction, from my right hon. Friend the Member for Cardiff, South-East (Mr. Callaghan), the former Prime Minister, who made a powerful and moving speech, and from other right hon. and hon. Members who have served this country with distinction. Other hon. Members have spoken with expertise, including the hon. Member for Sevenoaks (Mr. Wolfson).
Faced with that backcloth, I am forced to take comfort in an advertisement that I saw in a magazine not long ago, which read: Wanted: man to work on nuclear fissionable isotope, molecular reactive counters and three-phase cyclotronic uranium photosynthesisers. No experience necessary”. It is in that regard that I am highly qualified to participate in the debate.
I declare my interest at once, because I was the guest of the Indian Association of Alberta during the Christmas Recess. I am glad that I was its guest. I was enabled to visit Alberta, British Columbia and Ontario and to have discussions with many Indians.
The arguments today have centred on three main themes. The first is that it is extraordinary that we should be debating this matter at all and that it is a quirk of history. Associated with that is our fellow-feeling towards the Canadian Government and the Canadian people and our wish not to do anything to cause them offence. The second theme is the position of Quebec, and the third is the rights of the aboriginal peoples of Canada. We should remember that, whether we have been in Canada for 10 days—I could not claim to be an expert, because I should have needed another afternoon to achieve that—or whether we have worked on the reserves, we are not living there now. We are not the experts. We are not the people who have to face the burdens, responsibilities and deprivations.
Therefore, the Opposition recommend that the House should vote in favour of the patriation of the Canadian constitution. We genuinely wish the Canadian people well in this enterprise, but we cannot and would not wish to hide the fact that we approach the Bill with certain misgivings and qualifications. The misgivings are about the Government’s determination to push ahead with the Bill at this stage, without waiting for a final determination of the legal issues before the House of Lords, which could be determined in a very short time. Their position, having regard to the stand that they took with the Court of Appeal, is utterly illogical.
We have misgivings about the pressures to which the Government have been subjected by the Federal Government of Canada. There is no doubt that there is a feeling in the House that we are expected to rubber-stamp the Bill and to do no more than that.
We have misgivings about the fact that the Indian peoples have not been parties to the consultations that have taken place. They have not even been asked to give their consent to the proposals.
As I have said, it was my privilege during the Christmas Recess to visit Canada. I had the opportunity to have a long discussion with Mr. Chrétien while I was there and, more recently, with him and my right hon. Friend the Member for Leeds, East (Mr. Healey), He argued characteristically, forcefully and passionately that his Government had good will towards the aboriginal peoples.
364 He specified the help that was available, and his resolve was clear that the basic rights that they are asserting should not be subverted.
I met also Federal Government officials and members of our sister party, the NDP, at both federal and provincial levels. I was able to hear at first hand on my visits to Indian reserves, and while meeting members of Indian bands and tribal councils in Alberta and British Columbia, some of the anxieties, doubts and suspicions of which we have heard something today, about the intentions and the good faith, in their eyes, of the Federal and, perhaps even more particularly, the provincial Governments.
I heard their doubts about the motivations of those Governments in their constitutional proposals and their long-term objectives for the Indian peoples. I was able, too, to see at first hand something of the conditions on some of the reserves. I was made aware of the devastating unemployment that stalks the Indian peoples, impoverished housing conditions, problems with drink and drugs, their sense of alienation and their strong sense of religious devotion, which perhaps goes to the heart of their way of life and their claims for a special status.
It was argued by some that whatever may be the situation of the Indians it should be no concern of this House. I concede that ultimately, after patriation, the task of reconciliation will be, as in practice it has been for many years, the burden of all the Canadian people in Canada. It cannot be otherwise.
If injustices have been perpetrated, and if the Canadian Indians have a sense of grievance, I submit that we have a duty to consider them and to articulate their grievances as long as we are required to adjudicate on the Bill. If their voice has not been heard properly in Canada, as it is claimed by them, it is right that it should be heard in the House of Commons, as it has been today. Whether it is right to divide the House on various amendments that may be tabled is a matter of political judgment. Our judgment now is that it would be preferable to discuss these matters, but not to divide the House.
I and others expressed that view as friends of the Federal Government, whose record on international human rights is exceptionally good, and as friends of the Canadian people as a whole. Our wish is to do our best to enable redress to be provided if wrong has been done. In the constitutional talks which are to follow patriation, the views and the criticisms expressed in the House will be of assistance in the resolution of the complex problems which have bedevilled Indian-white relations in Canada for so long. I cannot believe that such discussions can damage those interests.
We all want to see a just charter of rights and freedoms enacted and, above all, practised. We want to see a just method of amending the constitution of Canada. We want to ensure that the 1763 proclamation and all that it stands for is indelibly accepted. We want all Canadians to share in the pride of the accomplishment of patriation of the Canadian constitution. Would it not be sad in the extreme if one group of Canadians were to consider that they had been excluded from that process?
Whatever arguments there may be about Quebec, it cannot be said that Quebec was excluded from the discussions and consultations. During my discussions in Canada, even the most ardent supporters of the constitutional proposals conceded that the history of Indian-white relations has been sadly chequered. There can scarcely be a shred of doubt about that.
365 The Indian peoples were in Canada long before the European settlers. They did not seek to impose their way of life on the Europeans. Indeed, they welcomed them. They allowed them to live in a wholly different culture. They fought side by side with White Canadians on many occasions, not least in the two world wars that we have bitterly experienced this century.
Many would concede that in many instances an unequal bargain was struck when the dominant culture pushed its way across the vast land of Canada and the old culture had to respond to that new influence. In essence, the generous attitude displayed by the Indians was scarcely reciprocated. The Indian Act was exceptionally paternalistic. It relegated Indians to reserves—mostly small parcels of land. Today there are approximately 2, 200 parcels of reserved land. It was land of apparently little or no value, but when it was found to be valuable, there were few compunctions about evicting the Indians, expropriating their land and trampling on their rights. The Indians had no right to vote or participate in Government until 1960. They had no provincial voting rights until 1969. They had none of the rights that white Canadians had taken for granted for years.
Mr. Robert Rhodes James (Cambridge) rose—
Mr. Davis I have deliberately given up a considerable amount of time. If I have time, I shall give way to the hon. Gentleman.
Is it surprising that the Indians are fighting to have their rights entrenched beyond any doubt in the constitution? They fear that the constitution will remove historic constitutional protections and that it will give power to Federal and provincial Governments to extinguish Indian rights. Their fear is that, in accordance with previous precedents, Federal Governments will move to eliminate gradually the special constitutional status of the Indian nations. That could lead to the extinction of their rights to land, hunting, trapping and fishing and to the erosion of their languages, social systems and religious beliefs. Those are the fears that they vividly expressed to me.
If the Indians are wrong—I hope fervently that they are—it would be enormously helpful if, as my right hon. Friends the Members for Leeds, East and for Cardiff, South-East said, the Canadian Government were to demonstrate that those beliefs are wrong.
I hope that the Canadian Government will take the opportunity to do that before we complete our deliberations on the Bill. It is not enough simply to say that those anxieties are misplaced or groundless. The Canadian Government must say that the consultations will be real. It is not just a question of complying with the letter of the proposals.
Why were the Indians not consulted before? Would it not have been preferable if that had been done? What happened? Initially, nothing was said in the proposals about the recognition of aboriginal and treaty rights. Then, at the instance of the New Democratic Party, provisions similar to those in clause 35 were inserted, except that there was no reference to the word “existing”. The provision was then deleted altogether as being unacceptable to most of the provincial Prime Ministers.
As the hon. Member for Essex, South-East (Sir B. Braine) said, that caused massive indignation. Miraculously, a solution was found that was acceptable 366 even to the most hostile provincial Prime Ministers. Lo and behold the word “existing” was found. Canada’s Minister of Justice said that that word was entirely meaningless.
My right hon. Friend the Member for Leeds, East pointed out that if the word is meaningless there is no reason for importing it and it should be deleted. If it is not meaningless, why has it been included? Can it be that the word “existing” would limit the rights and that there would be no recognition of cultural or religious rights or of language? Those rights are not now recognised by the Federal or provincial Governments, so how can they exist in future?
Can the word “existing” limit aboriginal rights? The Indians do not forget the words of Prime Minister Trudeau, which have been quoted repeatedly in the House. In British Columbia, the present Attorney-General stated affirmatively that the provincial Government did not recognise aboriginal rights. At best, the federal position has recently changed from a positive “No” to an equivocal “Maybe”. However, that is not true of the provincial Governments.
Mr. Rhodes James Would the hon. Gentleman not describe his speech as gross interference in the internal affairs of another country?
Mr. Davis No, I would not. Is it wrong to criticise the situation in El Salvador or South Africa? Fears are being expressed and I do not accept that it is gross interference to criticise. My view is shared by many of the senior Members who have spoken in the debate. The Indian peoples are suspicious. Their claim is not for secession or independence, but for special status as the first citizens of Canada and for a degree of self-government.
We shall debate clauses 25, 37 and so on later and I shall say no more about them now. It is hard for us, inured in the workings of a modern technological society, to understand that many of the Indian peoples still require hunting, fishing and trapping rights simply to survive. Indeed, I am sure that the hon. Member for Sevenoaks, who was a teacher on a reserve, will bear that out. About 90 per cent. of the Indian population on some reserves are unemployed.
The White Paper published in 1969 proposed the assimilation of the Indian peoples and was fiercely rejected and resented. It has sullied the atmosphere in Canada for the Indians. I hope that these matters can be swept aside. I hope that the constitution will build a bridge of comprehension between the peoples of two different worlds. The feelings that have been expressed by the Indian peoples—their reserves, qualifications and anxieties—must be taken into account by the House. However, we should take them into account as friends of the Canadian peoples. I resent the view that the hon. Member for Cambridge (Mr. Rhodes James) uncharacteristically expressed. I have heard him express opinions about other countries, and I dislike the view that we should hesitate to say anything about such matters.
The Indian peoples want to share the resources of Canada so that all will benefit. Obviously whites and Indians must live together in Canada. We want the aspirations expressed by the Canadian Government from time to time about the desire to see them living together harmoniously fulfilled. Therefore, a way to get them to live together with dignity must be found. The House 367 expressed its feelings with dignity today. We wish to assist the Canadian Government along the path that they have chosen and make it acceptable to all the Indian peoples.
9. 41 pm
Mr. Richard Luce (Shoreham) If the hon. Member for Hackney, Central (Mr. Davis) does not regard my comments as patronising, I congratulate him on making a maiden speech from the Opposition Front Bench as a spokesman on foreign affairs. I shall reflect on some of our differences in approach to the subject. The hon. Gentleman said that he was not an expert on Canada, but I assure him that the House listened with great interest, as he recently visited that country.
There is no doubt that this has been not only a significant but an historic debate. Sticking my neck out, I believe that on this, unlike many other occasions, the House has risen to the occasion. We have had not only a great variety of speeches, but forceful and moving speeches. The right hon. Members for Leeds, East (Mr. Healey) and Cardiff, South-East (Mr. Callaghan) both made moving and impressive speeches supporting Second Reading on what one can only describe as an exceptional occasion.
After all, we are dealing with an unusual constitutional relationship between two countries which have, first, the closest of ties. As my right hon. Friend the Lord Privy Seal said, some 40 per cent. of the Canadian population are of British origin. We have long historical associations. Secondly, we are both members of NATO and equal partners in the Commonwealth. We have both been allies in times of war.
Tonight’s debate concerns the termination of this unusual aspect in our relationship. I use the word “unusual” again, but I noted during the debate that the word “anachronistic” frequently featured. That word might also accurately describe the matter.
My right hon. Friend the Member for Chesham and Amersham (Sir I. Gilmour), who dealt with these responsibilities in former days, implied that in considering the Bill we must be very careful not to put ourselves in the position where we are charged by Canadian people with being “neo-colonialists”. It is fair to say that there is a big difference between this Bill and the normal sort of independence Bills passing through the House. Whatever the differing views expressed this evening, we would come to a common view on that distinction.
As we see it, we are not here to determine whether the conditions are right within Canada to proceed to a new form of independence. We are debating a very unusual situation and we surely must keep our sights, therefore, on the main and salient points.
First, we are responding to a request by the Federal Parliament and Government to return, if one may use this expression, our residual constitutional responsibilities to Canada where they belong, in line with our obligations under the Statute of Westminster 1931. In other words, as my right hon. Friend the Lord Privy Seal said earlier and as was strongly urged by the Foreign Affairs Committee, it is only at the request and with the consent of that Dominion.
We are responding to the request against the background of a close and important relationship between our two countries. We must remember, too, that the Federal Parliament passed the resolution by substantial majorities. In the House of Commons it was 246 to 24. I 368 reinforce what the hon. Member for Inverness (Mr. Johnston) said. Out of 75 Quebec Members in the House of Commons, 72 supported the resolution. The proposal has substantial support in the provinces. Although Quebec is important and significant, no one can deny that nine out of 10 provinces supporting the proposal is a substantial measure of support.
We must also consider the strong endorsement by the Foreign Affairs Committee. My hon. Friend the Member for Stroud (Sir A. Kershaw), who was Chairman of the Committee, spoke lucidly and clearly. He was supported by the hon. Member for South Ayrshire (Mr. Foulkes), who is also a member of the Committee. They strongly support our view.
Strong views have been expressed on two aspects. The first concerns the Indian and aboriginal people. We all know that my hon. Friend the Member for Essex. South-East (Sir B. Braine) has strong and passionate views about human and minority rights. The first time that I met him was when I was a student and he asked me to the House to discuss the Somalis living in Kenya. It made an impression on me that an hon. Member was prepared to listen to anyone outside Parliament. I remember his kindness. We respect my hon. Friend for his strong views.
We also respect the strong and passionate views expressed by the hon. Member for Walsall, South (Mr. George), my hon. Friend the Member for Sevenoaks (Mr. Wolfson), who has great experience of working with the Indian and aboriginal people in Canada, my hon. Friend the Member for Holland with Boston (Mr. Body) and the right hon. Member for Norwich, North (Mr. Ennals). But it is the Queen in right of Canada, as opposed to the Queen in right of the United Kingdom, who has the ultimate responsibility. The hon. Member for Hackney, Central spoke strongly after his recent visit. But whatever feelings and experience we have, the Government believe that it is not for them to make a judgment. It is for the Canadian Government and people to make a judgment and to do their best for the Indian and aboriginal people. That view is strongly endorsed by the Foreign Affairs Committee. I have a shrewd suspicion that the Canadian Government are observing the debate and will have noted the views on this and other matters.
The other issue which has caused a great deal of interest and anxiety is that of Quebec. My right hon. Friend the Lord Privy Seal described at the beginning our position on Quebec. There is no doubt that we feel that we are conforming with the “request and consent” provisions of the Statute of Westminster, which have a substantial measure of consent. Of course, as the former Prime Minister, the right hon. Member for Cardiff, South-East said, it would be very good news if progress could be made and a reconciliation obtained between Quebec and the rest of Canada. All Members of the House must earnestly wish that happen.
However, I feel bound at this stage to respond to my right hon. Friend the Member for Stratford-on-Avon (Sir A. Maude) and my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) on a very specific point about Quebec. My right hon. Friend the Member for Stratford-on-Avon asked what would be the position if, as a result of the Quebec proceedings, the Canadian Supreme Court subsequently found the resolution of the Federal Parliament to have been unconstitutionally adopted; and I think I should attempt to answer that, although my hon. Friend the Member for 369 Tiverton (Mr. Maxwell-Hyslop) gave a most lucid and splendid explanation of the position. I will, however, put the British Government’s viewpoint.
In the light of the Canadian Supreme Court’s judgment of 28 September 1981, this question seems very unlikely to arise in practice, but even in the hypothetical event of the Supreme Court’s subsequently finding the resolution to have been unconstitutionally adopted, that would have no effect on the operation of the present Bill, once it had become an Act of this Parliament as part of the law of the United Kingdom. Whether it would have any effect on the operation of the Act as part of the law of Canada is, of course, a question of Canadian law, not United Kingdom law, and it is not something on which I should express an opinion here; it is a matter which, in the last resort, might have to be decided by the Canadian courts, the consequences of which, if any, might have to be resolved by the Canadian Government and Parliament.
It is that Government and Parliament that have requested us in these circumstances to proceed with the Bill, and the Government do not think that it would be right to do anything other than act in accordance with that request.
Sir Derek Walker-Smith I respectfully suggest to my hon. Friend the Minister of State that the answer to the question of my right hon. Friend the Member for Stratfordon-Avon (Sir A. Maude) is really quite easy. The Act of Parliament here would not be invalidated as a matter of English law. On the other hand, under the ordinary operations of the Federal constitution, the resolution of the Canadian Parliament would be ultra vires and consequently in Canada the new constitution would be illegal. That would be very unfortunate. That is certainly the answer.
Mr. Luce Perhaps I should immediately respond by saying to my right hon. and learned Friend that I am not a lawyer. It would not be wise for me to embark on a disputation with him on the remarks he has just made, save to say that I have just stated the British Government’s position and I should like to stick to that.
Whilst we are on the important subject of Quebec, the hon. Member for Kingston upon Hull, Central (Mr. McNamara), who was until recently a member of the Foreign Affairs Committee and, therefore, has studied this whole question very carefully, talked about the grievance of the people of Quebec. The anxieties of the people of Quebec have been expressed on their behalf by many hon. Members today, but if we failed to pass the Bill what would be the sense of grievance felt not only by the Federal Government but by the Federal Parliament and nine out of the 10 provinces? Apart from our feelings of obligation under the Statute of Westminster, that is a matter that it is our duty to weigh up and consider very carefully.
A number of hon. Members spoke about the court cases. The Government have been asked why we did not wait for the completion of the two court cases which have been the main strand of the debate on that matter—the Quebec case and the Indian case here, which went up to the Court of Appeal. Perhaps the reason why I am standing here, and not someone else, is that we believe that it is a political judgment that we must make at the end of the day. It is true that as regards Quebec the Canadian Government 370 waited for the Supreme Court to express its views before putting their proposals to Parliament, and Quebec put its case in those proceedings. But the subsequent case, which is before the Quebec court, went there after the Canadian Parliament had decided to put its request to us.
In addition, as my right hon. Friend the Lord Privy Seal said, as regards the Indians, we waited until the Court of Appeal had expressed its views. It has unanimously made it clear that the obligations towards the Indians lie in the hands of the Crown in the right of Canada as opposed to the Crown in the right of the United Kingdom.
Apart from the consideration of the possible length of the proceedings, the most important judgment is political. We must be responsive to the request of the Canadian Parliament and Government. I again refer to the Statute of Westminster. We attach great importance to our relations with Canada. We have not rushed into the Bill, as the request was received on 9 December. Our balanced judgment is that it is our duty to respond with reasonable speed, and that is precisely what we are doing.
I have tried to answer the main points in the debate. The British Parliament has received a duly presented request for enactment of a Bill concerning the Canadian constitution. It is in accordance with longstanding convention that we respond to that request, in accordance also with the traditional pattern of our relations with Canada, which is a close Commonwealth friend.
The particular request before us is a very special one. The Bill is of special importance because it envisages the final transfer to Canada of the right to amend the Canadian constitution, and will provide Canada with a new constitution. Hon. Members will be aware of the intensive discussions and negotiations in Canada which led up to the presentation of the request for the Bill. I do not need to remind the House that the Canadian people will be paying the greatest attention to the debate and will be aware of its great significance.
The main consideration is that we have received a request and that we are asked to act on it. I must ask hon. Members to consider the position that would arise if we did not respond by passing the Bill. That could give many Canadians the impression that we think we know better than they what is good for Canada. I am sure that hon. Members will weigh those considerations very carefully. I therefore invite hon. Members to support the Bill and so finally remove an anachronism from our relationship with the friendly country of Canada.
Question put, That the Bill be now read a Second time:—
The House divided: Ayes 334, Noes 44.
Division No. 70] [10 pm
Abse, Leo Beith, A. J.
Aitken, Jonathan Bell, Sir Ronald
Alexander, Richard Bendall, Vivian
Alison, Rt Hon Michael Bennett, Sir Frederic (T’bay)
Alton, David Benyon, W.(Buckingham)
Ancram, Michael Best, Keith
Anderson, Donald Biggs-Davison. Sir John
Arnold. Tom Blackburn, John
Aspinwall. Jack Blaker, Peter
Atkins, RtHonH.(S’thorne) Booth, Rt Hon Albert
Atkinson, David(B ‘m ‘th, E) Boscawen, HonRobert
Atkinson, N(H. ‘gey,) Bottomley, Peter(W’wichW)
Baker, Kenneth(St. M’bone) Boyson. DrRhodes
Baker, Nicholas(N Dorset) Bray, Dr Jeremy
Barnett, Guy(Greenwich) Bright, Graham
Beaumont-Dark, Anthony Brinton, Tim
Brittan, Rt. Hon. Leon Grieve, Percy
Brocklebank-Fowler. C. Griffiths, Peter Portsm’th N);
Brooke, Hon Peter Grylls, Michael
Brown, Hugh D.(Provan) Gummer. John Selwyn
Brown, Michael(Brigg&Sc’n) Hamilton, Hon A.
Bruce-Gardyne. John Hamilton, James(Bothwell)
Bryan, Sir Paul Hamilton, Michael(Salisbury)
Buchan, Norman Hamilton, W. W.(C’tralFife)
Buck, Antony Hannam, John
Budgen, Nick Harrison, RtHonWalter
Bulmer, Esmond Hattersley, Rt Hon Roy
Butcher, John Havers, Rt Hon Sir Michael
Cadbury, Jocelyn Hawkins. Paul
Callaghan. RtHonJ. Hawksley, Warren
Campbell-Savours, Dale Hayhoe, Barney
Carlisle, John(Luton West) Haynes, Frank
Carlisle, Rt Hon M.(R’c’n) Healey, Rt Hon Denis
Cartwright, John Heath, RtHon Edward
Chalker, Mrs. Lynda Heddle. John
Clark, Hon A.(Plym’th. S’n) Heffer, Eric S.
Clark, Dr David(S Shields) Henderson, Barry
Clarke, Kennelh(Rushcliffe) Heseltine, Rt Hon Michael
Cocks, Rt Hon M.(B’stolS) Hogg, HonDouglas(Gr’th’m)
Cope, John Hogg, N.(EDunb’t’nshire)
Cormack, Patrick Holland, Philip(Carlton)
Costain. SirAlbert HomeRobertson, John
Crawshaw, Richard Homewood, William
Critchley, Julian Hooley, Frank
Cryer, Bob Howe, Rt Hon Sir Geoffrey
Cunningham, G.(lslingtonS) Howell, RtHon D. (G’ldf’d)
Dalyell, Tam Howell, Ralph(NNorfolk)
Davidson, Arthur Howells, Geraint
Davis, Clinton(Hackney C) Hunt, David(Wirral)
Davis, Terry(B’ham, Stechf’d) Hunt, John(Ravensbourne)
Deakins, Eric Hurd, HonDouglas
Dean, Joseph(Leeds West) Janner. HonGreville
Dean, Paul(NorthSomerset) Jenkin, RtHon Patrick
Dormand. Jack John. Brynmor
Dorrell, Stephen Johnson, James(Hull West)
Douglas, Dick JohnsonSmith, Geoffrey
Douglas-Hamilton, LordJ. Johnston, HusseW(lnverness)
Douglas-Mann, Bruce Jopling. RtHonMichael
Dubs, Alfred Joseph, Rt Hon Sir Keith
Dunn, James A. Kaberry, Sir Donald
Dunn, Robert(Dartford) Kershaw. SirAnthony
Dunwoody, Hon Mrs G. Kilfedder. JamesA.
Dykes, Hugh Kimball. SirMarcus
Edwards, RtHon N.(P’broke) King, RtHon Tom
Eggar. Tim Kitson. SirTimothy
Ellis, Tom(Wrexham) Knight, MrsJill
Emery, Sir Peter Lamont, Norman
English, Michael Lang, Ian
Evans, loan(Aberdare) Latham, Michael
Evans, John(Newton) Lawson, Rt Hon Nigel
Ewing, Harry Lee, John
Eyre, Reginald LeMarchant, Spencer
Fairgrieve. SirRussell Lennox-Boyd. HonMark
Faith, MrsSheila Lester, Jim(Beeston)
Fenner, Mrs Peggy Lewis, Kenneth(Rutland)
Finsberg. Geoffrey Lloyd, Ian(HavantS W’loo)
Fletcher, Ted(Darlington) Lloyd, Peter(Fareham)
Fookes, Miss Janet Loveridge. John
Foot, RtHon Michael Luce, Richard
Forman, Nigel Lyell, Nicholas
Foulkes, George McCrindle, Robert
Fowler, Rt Hon Norman Macfarlane. Neil
Fraser, Peter(South Angus) MacGregor. John
Freeson, RtHon Reginald MacKay, John(Argyll)
Gardiner. George(Reigate) MacKenzie. RtHonGregor
Garel-Jones, Tristan Macmillan. RtHonM.
Gilmour, Rt Hon Sir Ian McNair-Wilson, M. (N’bury)
Ginsburg, David McNally, Thomas
Goodhart. SirPhilip McNamara, Kevin
Goodlad. Alastair Major. John
Gorst. John Marland. Paul
Gow, Ian Marshall, DrEdmund(Goole)
Grant, George(Morpeth) Marshall, Michael (Arundel)
Grant, John(IslingtonC) Martin, M(G’gowS’burn)
Gray. Hamish Mason, Rt Hon Roy
Greenway, Harry Mates, Michael
Mawby, Ray Skeet, T, H. H.
Mawhinney. Dr Brian Skinner. Dennis
Maxton. John Smith, Cyril(Rochdale)
Maxwell-Hyslop, Robin Smith, Rt Hon J.(N Lanark)
Mayhew, Patrick Snape, Peter
Meyer, Sir Anthony Soley. Clive
Millan. Rt Hon Bruce Spearing, Nigel
Miller, Hal(B’grove) Speed, Keith
Miller, Dr. M. S.(EKilbride) Speller. Tony
Mills, Iain(Meriden) Spicer, Jim(WestDorset)
Mills, Peter(West Devon) Spicer, Michael(S Worcs)
Mitchell, R. C.(Soton Itchen) Spriggs, Leslie
Moate, Roger Sproat. lain
Montgomery, Fergus Stainton, Keith
Morris, Rt Hon A.(W’shawe) Stanbrook. lvor
Morris, Rt Hon C.(O’shaw) Stanley, John
Morris, M.(N’hamptonS) Steel, Rt Hon David
Morrison, HonC.(Devizes) Steen. Anthony
Morrison, Hon P.(Chester) Stevens. Martin
Morton, George Stewart, A.. (ERenfrewshire)
Moyle, Rt Hon Roland Stewart, Ian(Hitchin)
Mudd, David Stott. Roger
Murphy, Christopher Stradling Thomas, J.
Myles, David Tapsell, Peter
Neale. Gerrard Taylor, Teddy(S’end E)
Needham, Richard Tebbit, Rt Hon Norman
Nelson, Anthony Temple-Morris, Peter
Neubert, Michael Thatcher, Rt Hon Mrs M.
Newens, Stanley Thomas, Rt Hon Peter
Newton, Tony Thompson, Donald
Nott, Rt Hon John Thorne, Neil(llfordSoufh)
Oakes, Rt Hon Gordon Thornton, Malcolm
O’Neill, Martin Tilley. John
Onslow. Cranley Tinn, James
Osborn. John Townend, John(Bridlington)
Page, John(Harrow, West) Townsend, CyrilD, (B ‘heath)
Palmer. Arthur Trippier, David
Park, George Trotter. Neville
Parker. John van Straubenzee, Sir W.
Patten, John(Oxford) Varley, Rt Hon Eric G.
Pattie, Geoffrey Vaughan. DrGerard
Pawsey, James Viggers, Peter
Penhaligon, David Waddington, David
Percival. Sirlan Wainwright. R(ColneV)
Peyton, Rt Hon John Wakeham. John
Prescott. John Waldegrave. HonWilliam
Price, SirDavid(Eastleigh) Walker, Rt HonP. (W’cester)
Prior, Rt Hon James Wall. SirPatrick
Pym, Rt Hon Francis Waller, Gary
Radice, Giles Ward, John
Raison. Timothy Warren, Kenneth
Rees, Rt Hon M(Leeds S) Watkins, David
Rhodes James, Robert Watson. John
Ridley, HonNicholas Weetch, Ken
Ridsdale. SirJulian Wells, Bowen
Rifkind, Malcolm Wells. John(Maidstone)
Roberts, M.(CardiffNW) Wheeler. John
Roberts, Wyn(Conway) Whitehead. Phillip
Robinson, G.(CoventryNW) Whitelaw. RtHonWilliam
Rooker, J. W. Whitney, Raymond
Roper. John Wickenden, Keith
Ross, Ernest(Dundee West) Wiggin, Jerry
Ross, Stephen(Isle of Wight) Wilkinson, John
Rossi, Hugh Williams, Rt Hon A.(S’sea W)
Sainsbu ry, HonTimothy Williams, D.(Montgomery)
Scott, Nicholas Winnick, David
Shaw, Giles(Pudsey) Woolmer. Kenneth
Shaw, Michael(Scarborough) Young, SirGeorge(Acton,)
Shelton. William(Streatham) Younger, Rt Hon George
Silkin, Rt Hon S. C.(Dulwich) Tellers for the Ayes:
Silvester. Fred Mr. Anthony Berry and
Sims, Roger Mr. Carol Mather.
Ashton. Joe Canavan, Dennis
Bennett, Andrew(St’kp’tN) Cockeram, Eric
Bevan, David Gilroy Cowans, Harry
Bidwell, Sydney Cox. T.(W’dsw’th, Tootg)
Callaghan, Jim(Midd’t’n&P) Crowther, Stan
Davies, Rt Hon Denzil(L’lli) Parry, Robert
Duffy, A. E. P. Powell, Rt Hon J. E.(SDown)
Dunlop. John Powell, Raymond(Ogmore)
Eastham, Ken Price, C.(Lewisham W)
Edwards, R.(W’hampt’n S E) Ross, Wm.(Londonderry)
Ennals, Rt Hon David Sever, John
Forrester. John Stewart, Rt Hon D.(W Isles)
Garrett, John (NorwichS) Thomas, Dafydd(Merioneth)
George, Bruce Walker, Rt Hon H. (D’caster)
Gilbert, Rt Hon Dr John White, Frank R.
Hardy, Peter Wigley, Dafydd
Holland. S.(L’b’th, Vauxh’ll) Wilson, Gordon(DundeeE)
Hoyle, Douglas Winterton, Nicholas
Kerr, Russell Woodall. Alec
Lamond, James Young, David(BoltonE)
McKelvey. William Tellers for the Noes:
McWilliam. John Mr. David Stoddart and
Molyneaux, james Mr. David Marshall.
Question accordingly agreed to.
Bill read a Second time.
Bill committed to a Committee of the whole House. —[Mr. Thompson.]